
Class _E34:i 

Book_j5-§:45 



THE 



CONTRACT 

FOR THE PURCHASE Of 

WESTERN TERRITORY, 

M A D E W 1 T H T H% 

LE(J.ISLATURE of GEORGIA, 

-»* IN THE YEAR 1 795 J 



'Considered with a RBrsKBNCB to thb suxk^'ivt ATTIMPTi •? 

THE STATK^ TO IMPAIR ITS 0BLI«ATtOK. 



v., ^g^ JOHN E Anderson ci^ william j HQfUY, £•<*•• 



(PUB^SHED AT THE INSTANCE OF TH*1>URCHASERS.) 



j^ U C fH S T A* '•' 

•§^ittA% »T RANDOLPH e/ BUNCis. 



I ERRATA. 



tv> 



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Page 16, line 23, for " ;V read " <?;/."" 
Page 23, line 6, for " //j" read ** the." 
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Page 48, laft line, after *' z/'dTc-" rend " /.f." 
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Page — line 2S, for '' Contra^ s'' vqikX^' Contrail:' 
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Page 6^., line 16, for '■'■ graduate'' vt\^. '-'- quadrat cy 
Page 67, line 23, for *' difference'' read " deference." 
Page 68, line 29, for " he" read "/>t\" 



J::^ The Editors not having anticipated the fubfcqucnt 
determination of the purcliafcrs, to prefent this work to the fcrii- 
tiny ofthc public eye ; they have to regret that the loofc manner 
in which the maiiufcript copy was drawn up, has fubjedcd t!\c 
Printers to the neceiruy of annexing a page of Errata. 



CONTRACT, efr. 



T 



HERE is no ohjeft in fociety of more im- 
portance, or to which legiflative exertions have more aflldiouf- 
ly been directed, than to cftablifh explicit rules for the regulation 
and confirmation of contra6ls. But notvvithftanding the im- 
portance of the objc(5l, and the wifdom hitherto exercifed in 
purfuit of it ; fuch is the infinite variety of commerce, and Co 
multifarious the engagements of men, that either from the ob- 
ftinacy, ignorance or fubtilty of the parties, cafes will arife dif- 
ficult to bring within regulations already eftabli(hed. Perhafis 
no inftancc ever occured more ftrongly to enforce this obferva- 
tion, than that of the fale of Weftern Territory to certain com- 
panies by the State of Georgia, and the (ubfcquent attempts to 
abrogate that fale by one of the parties. 

Regardless of the confufion Into which this fub|e<5l is 
caft by the ftrugling of contending partisans, unawed by po- 
pular declamation, and unbiaflcd by political intereft, the un- 
derfigned feel no reludance at giving their explicit opinion on 
the two following propofitions, which have been fubmitted to 
their confideration, 

First, Whether the fale of Weftern Lands by thegovern, 
ment of Georgia in the year 1795 was valid in law, and obli- 
gatory upon the (late ? And fecodly. Whether that fale or con- 
trail, has fince been annulled or lefcinded ? 



[ 4 ] 

As tlic Tale of unappropriated lands, In this way was not 
ariovclty in the condu(5l of ftates, the inftan^e under confidt ra- 
tion cannot be viewed as an experimental proceeding, but one 
which as to method had the fandion of example, and as to 
Confequences the didatcs of experience. Upon a fuhjedt fo 
circumftanced it might at firft view, appear an eafy matter to 
give fuch an anfwcr to the queftions propounded, as would 
bear the teft of inveftigation, and accord with the uniform ex- 
perience of ages. 

This however being a cafe by which the paflions of the 
citizens have been awakened it was not left to the cool rcfults 
cf rcafon or precedent ; but almoft every attempt to developc 
the merits, or inveftigate the principles of the meafure, has been 
fliackled by prejudice or obfcured by error. 

In the enquiry now undertaken, it is not deemed necefTary 
to examine the claim of the United States to the lands in qucf- 
tion,asthe purchafers anticipate a refult which will be confident 
with the equity of their claim, and the wifdom and juAice of 
the government. 

In anfwering the firft queftion therefore, we (hall direft 
our arguments to fupport the following auxiliary propofitions: 
Firft, That the fovercign authority of the ftate conftituted a 
proper party to the contrad •, and that, under the conftitution, 
that body had a right to alienate the property, with which it 
was inverted. 

Secondly, That the title conveyed was in its nature ali- 
enable, and therefore the proper fubjedt of a contraft. And 
thirdly. That the contradl made between the parties, was finid- 
ly and efFedually confammated. 



[ 5 } 

From the nature and obje(5ls of civil fociety refults a firft 
principle : That in all forms of government there muft exift a 
moral agent, in whom the public property muft veft, and in 
whom thofe qualities unite, that are neccflary to make a party to 
compads, and to be the fubjcdl of moral obligations. 

The chara(5ler and qualities of this moral agency are em- 
braced in the legal idea of a corporation, which is defined to be 
'* a body inftitutcd, for the better government of a people, com- 
bined together, and living under a regular fyftem of law." * 
Corporations arc diftinguiflicd into fole and aggregate -, of the 
former defcription is the king, who, in this capacity, is faid, 
never to die. This fole corporation, in monarchies holds the 
fovereign power, and hath infeparably incident to it, a tenure 
in the public property, and the power of difpofing thereof at dif- 
cretion.-j- As then thefe incidents attach themfelves to the fo-i 
vereign authority, whatever the form of government may be, 
there arc incorporated in it, the fame qualifications. " By the 
** place of foverlgn I mean'* (fays Ward) ** not any particular 
«* form of power, or any particular divifion of it. 1 mean not 
** a king, an oligarchy, or a democratic council, or a mixture 
•* of all three. 1 mean fimply, that power in a ftate, which, 
•* according to the (hape of its conftitution is, while it lafts, fu- 
'* prcme. It is evident fuch a power muft be inviolable, 
•' or there would be a contradi«5lion in terms \ and not only 
** this, but a poflibility, every moment of deftroying, not mere- 
•* ly the government, but the conftitution ; for no conftitution 
** can contain a provifion for its own deftrudlion.":}; From 
this authority, it is clear, th:it the qualities and incidents of fo- 
vereignty are not confined to monarchies alone, but that fociety 

♦ I Bac. Abr. 499. f Vattd, L. N. loa. ; Ward, L. N. a. 305. 



jwjw 'Hi#.iMHiJtssa:r 

[ 6 ] 

aflumes the fame charaiflcr, in relation to its political arrcncy 
and exiftance, in all forms of government. " All focieties are 
♦* formed by the concurrence or union of the wills, of fcveral ner- 
fons, with a yiew of acquiring fome advantage. Hence it is 
that focieties are c6nfidered as bodies, and acquire the appellation 
of moral perfons, by reafon, that thofe bodies arc in efFcfl ani- 
mated with one fole will, which regulates ail! tl^eir movements, 
This agrees particularly with the body politic or ftate, the 
fbvereign is the chief or head, and the fubjefts the members j 
all their a<5lions that have any relation to fociety, are dire<5lcd 
hy the will of the chief. Hence fo foon as ftates are formed, 
they acquire a kind of pcrfonal properties : And we may con- 
fequently, with due proportion, attribute to them whatever a- 
grees in particular with man ; fuch, as certain aftions and rights 
that properly belong to them, certain duties they are obliged 
tp fulfil, tJ*f." • ** A fovereign thus clothed with the public 
authority, with every thing that conftitutes the moral perfona- 
lity of the nation, is under the obligations of that nation and in- 
veftcd with its ^rights." f Nations or dates then, whatever 
their forms of government may be, when organized, " are bo- 
dies politic, focieties of men united together to procure their 
mutual fafety and advantage by means of their union. Such a 
fociety hjis its alFairs and intcrefts, it deliberates and takes re* 
folutions in common, and thus becomes a moral perfon, having 
an undcrftanding and a will peculiar to itfelf, and is fufceptible 
of obligations and laws:* J And the celebrated Puffcndorf, in 
his book upon the laws of nature and nations, expreffes himfelf 
upon this point, as follows : " A compound moral perfon^ is 
♦* then con(lituted, when feveral individual men are fo united to- 
j* gether, that what they will or «<?/,- by virtue of that union i\ 

f Burlcma^uc, N. L. 163. f Vaitei, L. N. 36. % Vatiel, L. N. i. 



t r i 

*' efteemed a fingle will, and a fingle ad, and no more. And 
" this is fuppofcd to be done, when the particular memberst 
*' fubmit their wills, to the will of one man, or of one council, 
•* in fuch a manner as to acknoAledge, and to dcfire others to 
** acknowledge, for the common a.6t and determination of them 
** ail, whatever that man or that council (Kali decree or perform 
*' in matters which properly concern fuch an union, and are a-. 
" greea!>ie to the end and intention of it. Hence it comes t6 
*' pafs that whereas in other cafes, when many men 'uji II or aSl 
*' any thing, we conceive fo many diftinifl wills and afls, as 
" there are in number natural, and human individuals, yfet when 
*' they clofe and form a compound perfon, they arc fuppofcd to 
*' have but a fingle will, and every a«5lion which they perform, 
*' is conftrucd as one only, although a number of natural indi- 
" viduals are concerned in its production. And hence fuch a 
" compound perfon ought to obtain fome particular goods and 
" rights, which none of the members In their private and fepc- 
** rate capacities, can claim or arrogate to themfelvcs.*' * And 
fays the fame author in anothb- pl^cfe : " And Why may not the 
foevreignty as well agree to a moral compound perfon, as to a An- 
gle man*?" \ From this weight of authorities, we have no dlf-* 
ficulty, in inferring that the fovereign legiflatlve authority In a 
ftate, in whatever mode it may be delegated, has Infepirably at« 
tached to it the incidents of a corporation. According, there- 
fore, to the form of government, which has been adopted by 
the people of this community, the fovereign authority and its 
appendages conftitute an aggregate corporation, compofed of 
a number of members, and, by the fundamental compaft, iS 
created a hcdy politic. This body then independently of, and ab- 
ftradled from the power of impofing municipal regulations 0*^ 

* Puffendorfj L. N. N. 6. ■\ i b. d. 2 part, 175. 



[ 8 ] 

iJie people of tVie ftate ; may be contemplated as a moral a^ent, 
exercifing a w/7/; holding a tenure in the public property ; ca- 
pable of entering into compafts and being bound in obligations. 
In this capacity it never dies, nor can die without a revolution ; 
for according to the foregoing authority, no conftitution can 
contain a provifion for its own diffolution. Society once organ- 
ized and the governmental machine put in motion, the princi- 
ples of its mechaniim, are not fubje<5t to change, but conti- 
nue unalterably the fame, fo long as the fuperftrudure remains. 

The legiflitlve authority of this ftate, is indeed not lilce 
ia monarchy, by hereditary fuccefllon j but is the creature of a 
charter j for the conftitution may well be confidered in that 
point of view. And as the charter creates and gives being 
to the body, fo it prefcribes limits to its operations. 

" There are" (fays Bacon) "fome things iiicidentto this 
body, which it may do without any exprefs provifion." * When 
a corporation is once duly created-, all other incidents arc tacitly 
annexed — amongft which are, the right to fue and be fued^ to 
purchafe and fell, f And although the ftate is not fubjedl 
to be fued by exprefs provifion of the national compa(5l, 
yet the other incidents remain. And further " although a cor- 
poration aggregate is faid to be invifible, immortal and to exift 
only in fuppofition and intentment of law, yet fuch an artificial 
body, is by its creation, capable of purchafing and parting with 
its pofleflions." J From all which we may fafely conclude, 
that the legiflative authoriy, in the characfter of a corporation, 
created by the conftitution has incident thereto, the power of 
purchafing and felling without exprefs authority from the char- 

* I Bac. Abr. $04. f 10 Co. 30. Rol. Abr. 515. Hob. au. 

X I Bac, Abr. 506. 



r 9 ! 

ter. And hence It follows that this body politic, conllitutcd ^ 
proper party to the contraifl in qucftion, and occupied an un- 
reftralncd right to alienate the property veftcd in them. That 
the lands in queftion were vefted in this political body, cannot 
with any colour of reafon be denied. From the nature of pro- 
perty and dominion over it, an owner is abfolutely necelTary to 
pcrfccfl the Idea •, and no one, I truft, will be hardy enough to 
contend, that the title was in • the people of the community^ 
as tenants in common. 

This Idea of property can only be entertained by man- 
kind in a ftate of nature, in which every one has a natural right 
to the fpot he occupies, and an equal right w ith all others to 
fuch parts as arc unoccupied, but muft be exploded when we 
are reafoning upon a permanent tenure In the foil. In a ftate of 
civil fociety, where no property can be denominated common 
but that which is not divided between particular communities, 
or Is vefted e\'clufivcly in the individuals of the ftate. " As 
foon as a nation commits the reins of government into the hands 
of a Prince, it is confidcrcd as committing to him at the fame 
time the means of governing. Since then the revenues produ- 
ced by the public property, the domain of the ftate, Is deftined 
for the fnpport of government. It is naturally at the princes dif- 
pofal and ought always to be confidered in this light, unlefs the 
nation has In exprefs terms, excepted It, In conferring the fu- 
preme authority. " Whenever the fovereign authority is te- 
fcred, it includes along with it the power of making a free d'lC- 
pofition of the public revenues-, the Prince alone Is to deter- 
mine the proper application of tl>em, and ought not to be ac-, 
countable for them to any other perfon. * 

* V.attel, 102, 

B 



r ^ 1 

By the fame rules then and on the fame principle docs the 
J^ublic property «Mi a republic vcft in thofc to whom is commit- 
ted the fovercign authority j and they Jinve tlic fame right to 
Cxcrcife dominion over it, unlefs exprefsly reftrained by the con- 
ftitution. The public property then thus veiled in the body politic* 
their dominion over it may be confidcrcd as a diftind agency 
appertaining to the moral qualities of the corporation, and con- 
tradiftinguif)ied from the excrcife of fovcreign legiflative au- 
thority, or the power of impofing laws. 1 he former being 
what is defined to be the right of domain ; the latter, the em- 
pire or fovereign jurifdidlion. Whenever a nation or-ftate, 
therefore, fubmits the empire or fovercign authority to one man 
or fet of men, at the fame time, is yielded the eminent domain, 
at leafl if not exprefsly referved. And if the alienation or mort- 
gaging the public property was retrained, no fafe contract 
could be entered into with a flute or nation.* And further if 
the public property is difpofed of in virtue of thecn)incnt do- 
main, the alienation is valid, as having been made with fufficl- 
ent power, -f- It is evident therefore that tl.e reprefentatives of 
the people in general afilmbly, or in other words the legHlativc 
authority of this government, ftood in the fame fituation, and 
occupied the fame powers and capacities, with a king in a mo- 
narchical government. That in the capacity of a corporation, 
or body politic, they held the eminent domain of the ftatc, and 
had infeperably incident to their exiftcnce, the power of alienat- 
ing or otherwife difpofing of it, and to be free and competent 
agents in the formation of a contra(5l for that purpofe. *' The 
power and privilege of alienating our own pofll-nicns, or of 
conveying them to others, arifeth from the nature of full pro- 
perty.** J From the foregoing remarks and authorities, thg 

« Vattel. 107. f Vattcl, i bk d, 103. } Puffcndcrf, 362. 



r n ] 

body politic of the (late, had a phydcal power ofaflcntlng, a 
moral power of obligation, and a free ufe of^thofc powers in 
making the contrad under coiifideration •, and'pofllfl'ing aright 
in the thing or fuhjedt of the contradl, they had a coincident 
right to alienate, in as much, as they were not rcftrained there- 
from by the terms of their creation. 

Having cftabli(hcd the firft minor propofition, that the 
fovereign authority of the ftate, conftituted a proper party to 
the contraa, and that under the conftitution that body had a 
right to alienate the property with which they were inverted ; we 
proceed fccondly, to fhew that the title conveyed was, in its na- 
ture alienable ; and therefore the proper fubje(5l of a contRKfl. 

It is of the eflence of every contra<fl, that there fhould 
not only be parties able and willing to contrae^, butalfo a thing 
for which a contracft may be made. It behoves us, there- 
fore, to fliew that the fubjed of the contrad in queftion was, in 
legal intendment, the objecfl of a fale on one fide, and of pur- 
chafe on the other. ^ 

The want of perfpicuity, in writers on this part of tha 
fubjetH:, has involved it in much perplexity. 

In all enquiries after truth, a requifite precaution is to be 
well acquainted with the extent of the terms, by which we con. 
du(5l our reafonings and deduce our condufions. An inadver- 
tency, as to this point, has introduced much confufion, into al- 
moft every attempt to inveftigate the fubjed before us. The 
terms pre-emption, fovereignty, fee-fimple, &c. have been pro^ 
mifcuoufly ufed, without adverting to the extent of their mean- 
ing or the appropriate ideas attached to them. In order how- 
ever to avoid tliis error, and the confequent inaccuracy intro- 



r >^ 1 

duced by it -, in the profecution of the prcfcnt enquiry, we bfg 
to be unJcrftood, by the word pre-emption, the right of being 
the firft pnrchalcr i by the word fovcreignty, the fupreme pow- 
er of legiflation •, and by the words fee-fimple, a permanent pro- 
perty in tlie foil. 

In defining the nature of the title conveyed by the ftatc, 
wc fhall purfue the ordinary method \ namely, that of deduc- 
ting it from its origin, marking its progrefs and mutations, and 
explaining its prcfcnt extent. To proceed then, withoxit enter- 
ing into refined fpcculations upon the origin of permanent pro- 
perty in the foil •, let it futfife to fay : That part of the contineiit 
of America which is now embraced, in the limits of the United 
Sutcsi upon its firft difcovery, was inhabited by erratic and 
uncivilized natives, who had derived no national or indivi- 
dual property in the foil by adual cultivation. \Vith regard 
to the title which tlufc people had in the country over which 
they rambled in purfuit of the neceflaries of life, it was no 
more nor Icfs, than a title in common with all mankind.— 
Not having advanced one ftep from a ftate of nature, towards 
the acquirement of a permanent property in the foil, they were 
in porteirion, under that tenure, which the whole human race 
derived from the donation of heaven. The whole continent 
therefore was open, inviting the hand of induftry to acquire a 
permanent owner/hip, by a(5lual occupancy and cultivation. — 
This any nation or fet of individuals had a right to do by the 
laws of nature, and the confent and fandlion of the civilized 
world. In addition to this: The right ofconqueft, has long 
been fanc^ioned and acknowledged, amongft mankind. The 
conqueror has from this fource, an unqueftionable right of fo- 
vereignty and jurifdlt^Ion, over the country he has fubdued, and 
to impofc upon its inhabitants, municipal regulations. And 



:n- 



r £ 4 



[ -3 J 

when fuch country is inhabited by vagrant iinclvmzcu luuvca-, 
the dilates of humanity, it is true will forbid their extirpation, 
but the right of prefcribing their limits and defining the quanti- 
ty of intereft, referved to them, appertains to the conqueror. 
This right refults as well from the law of nature, as nations. — 
For by that law, he has a right to poflefs himfelf, of whatever 
he finds unoccupied and without a permanent owner, and to ap- 
propriate it, cxclufivcly, to his own ufe. Upon this principle, 
tlic qucftion '* whether a civilized nation could take pofllflloii 
of a vaft country inhabited by erratic nations ?" has been fet- 
tled in the affirmative. * And the inftanccs, where this has 
happened, furnifb honorable tcftimony of the humanity of thofe 
nations, who have cxercifcd the right. 

The terms prcfcribed to the aboriginies of America are, 
that they (hall have fpace to ** hunt and live on" — but no per- 
manent property in the foil, is, in any inftance, referved to 
them i becaufe, by the laws of nature, they never had acquired 
fuch an intereft. 

But, to be more particular, on this part of the fubjed,' 
\vt proceed to obferve that the King of England, after becom. 
ing the conqueror or dlfcoverer of that part of the continent of 
America, which is now embraced within the limits of thefe 
dates -, proceeded to eftablirti provinces therein, and to invert:, 
by charter, the abfolute property in the foil, in the feveral com- 
panies, or individuals to whom the grants were made. Thefe 
chr.rters, contain no refervation for the natives, but are abfo- 
lute and unconditional conveyances. 

The privileges ejxtcnded to the Indians, were therefore,' 
* Vattd, 92. 



? M 3 

by the curtcfy of the purchafcrs, which extended fo far as to aU 
low them a compcnfatioii, to withdraw themfclves from fo much 
of the territory as their civilized neighbors found it convenient 
to cuhivatc. 

At the declaration of the Independence of the United 
States, the feveral provinces, that had been cftablillKd in this 
country by. the charters from the crown of England, confede- 
rated themfalvcs under the title of the United Slratcs, and af- 
fumed the charaeler of a feperatc nation. This event gave 
birth to a new fovereignty, which extended itfelf, with mageftic 
dignity to the utmofl: limits of the chartered provinces. The 
right of empire and domain, throughout the whole extent, be- 
came immediately vefted in the nation, to be regulated and dif- 
poftd of, as the fovcreign power might direft. This national 
indtpcndcney and all its appendages were afterwards acknow. 
Icdgcd by the Britilh crown, in the treaty of peace in 1783. 

As the tenure of the Indians, in the lands aver which they 
ftrayed had been diflblved by conqueft, and as the purchafes 
made from them by the original grantees, only related to fuch 
lands as were appropriated •, the fpacc occupied by them withm 
the limit, of the United States, became fubjeA to the difpofition 
of the national fovereignty. Let us then enquire what fpecies 
of title, -was exprefsly or tacitly acknowledged in the Indians 
by the fupreme power of the nation. 

Bl't it will be neceflary to premife, that. In the general 
dlftiibution of right, the national compadV fecured to each of 
the dates, compofing the union, the jurifdiaional and territo- 
rial rights, within their chartered Umits, by which the abfolute 
property in the foil, was confirmed in them according' to the 
terms of the origln.al grants from the crown : The fole power, 



( "5 ] 

however, o^ making treaties, with other nations, was exprefsl/ 
rcfervcd in the naiionil fovercignty, It being deemed impolitic 
to permit a (ingle member of tlie nation, to a<5l in a cafe, 
which might regard the intereft of the whole. And, by fcve- 
ral treaties and other ads of the national government, the In- 
olans, who ftre not fubjec^l to the municipal regulations of the 
ftatcs within whofc limits, and upon whofe lands, they are fitu- 
ated, arc confidcred as feperatc rations. * It is, therefore, in 
thofe treaties &c. wc are to fearch for the conventional intereft, 
fecured to the Indians j as the ftates, although proprietors of 
the foil upon which they ramble, are rcftrained from dealing 
Nvith them, by the fundamental compaCl. f 

Bv thefe treaties &:c. then, we find the United States have 
Vefted the favage tribes with a right to ** live and hunt" on thofe 
lands to which, their temporary pofl'efllon hathnot been voluntari- 
ly rclinqulfhed ; deeming It Juft, that they fhould be allowed ti.e 
coriimon privileges of men in a ftate of nature, until the civil- 
ized community, found it ncceflary to extend its occupancy and 
cultivation. But as no ftate could be deprived of the permanent 
right in the territory within its limits, without a brench and 
confequent diflblution of thecompad, made by tlie nation with 
the feveral ftates ; nothing but a ufufrueluary right, a privilege 
to remain on the lands, in their native ftate, could be transfer- 
red or fecured to them by the United States. This indeed was 
all the right they ever had acquired by nature \ but as they had 
been divcfted of that right by conqueft, they were again invert- 
ed with it by convention. 

And as the praftice of giving thefe natives a confidcration 
for a relinquifhment of their pofTeflions, had been introduced 

* Vide appendix, i. f VHde appendix, No. 2. 



t .« * 

by the humane fcttlers of the coantry, their laudable example 
has been purfued fince the revolution, in purchafing their con- 
ventional right ; which, in all cafes, is required to be done, un- 
der the controul of the United States. * 

This was an a(5l of the nation, over the property ofonc of 
!ts members, from which, it was not exprefsly retrained. But 
as the intereft in the foil, had been permanently fecured to the 
Hate, the United States could make no difpofition, but of the 
title in the occupation of the Indfans. And over this the na- 
tion;il fovereignty alone, could politically extend, on account of 
the exclufive authority of making treaties, and becaufe the ci- 
vil jurifdidlion of the ftate, was limited by a temporary line. 

The Indian title, then, confifts of a conventional poflcf- 
fory intcrcft, carved out for the temporary ufe of the Indians, 
leaving in the ftate the reverfion in fee, whenever this ufufruc- 
tuary intereft is extinguifhed by treaty, or otherwife determin- 
ed by their own a<Jl. The ftate was not by this means, abfo- 
lutely diverted of any part of her intereft in the territory fecur- 
ed to her by the conftitution i but is ortly bound under the trea- 
ty-making power of the nation, to fubmit, to a temporary ap- 
propriation of an expedant intereft, for the purpofes of general 
policy. And whenever the neccftity of admittiiig the Indians^ 
to live and hunt in thefe lands ftiall ceafc, or when it ftiall be 
deemed political to extend the agriculture and civil jurifdi«ftion 
of the ftate j the nation is bound by its own ad, to revert this 
pofleflbry intereft in the ftate or in thofe claiming under her title. 

Under thcfe circumftanccs, the jurifdidional right of the 
ftate was in abeyance, and could not operate to the purpofes of 

• Appendix, 3. 



4C ^7 I 

ciy<l government, until the Indian right of ufe was ex tin- 
guilh-jJ or othervvifc" Ucternfilned. But the reverfionnry inter-* 
tft in the foil, was legally, a prefcnt Intcrcft, tho' to take tffcCt 
in future \ • and is as completely the fubjcd of alienation, as an 
cfwtc in poH'tnioa : -f Dominion over property, according to 
Tuffendorf, mny be confidi-red in two diftiiKT: points of view j 
*' it either denotes" (fays he) ** a bare moral quality^ by virtue 
*' of which we underftand, that a thing belongs to fome perfoii 
*' and that it ought to be fubjedl to his difpofal j or as it ini- 
" plies farther fome degree o( natural pQivet\, by which we are 
*' eiwbled to put immediately in execution, fome purpofe we 
*' have made concerning the faid tiling, or what amounts to the 
•* fame : Dominion^ is fometimcs confidercd as abftra(5led from 
'* P*'J[<IFon^ ^"J fometimcs is conceived as united to it ; this be- 
** ing OS it were the final completion of property •, upon the arri- 
*' val of which it fully exerts its dircift eft'.its." And further, 
" that dominion confidercd merely as a moral quality^ and as it 
" abftrai^s from pofl'eflion, may certainly be transferred by bare 
•* covenants \ for after the covenant is completed, or after the 
*' right 13 by covenant transferred on another, the thing imme- 
*' diately commenccth A/j, and regards purely his intereft and 
** advantage; and the alienator, can lawfully exercife no adl, 
*' about it, but fuch as tends towards delivering up poflcflion to 
*' the other party. If before delivery he make any other dif- 
*' pofal of the faid thing, he doth this only dcfa^o and not 
« dejurer % 

Contemplating then, this reverfionary intereft, or mo-. 
ral quality of property in an abftrad point of view ; it is legal- 
ly the fubjed of a contraft, and in its nature alienable. 

* Blac. Comm. f Blac Comm. ♦ PuflfenJorf, L. N. N. 36^, ju,. 

c 



I 18 ) 

It has been urged, that the title of the ftate was an ap-' 
pendage of the fovereignty ; and therefore not alienable— ^ 
From the foregoing authorities, however, it is cafy to draw a 
diftindicn between the ftate fovereignty and empire, and the 
tight of domain i the firft being the authority of impofling laws, 
the fecond, a right which belongs to the body politic, as a moral 
perfon, which, in that capacity they may retain, or alienate at 
pleafure.— From thefe principles tlien, the domain or other pro- 
perty of this moral agency may be alienated, without a relm- 
quifhment or transfer of the fovereignty ; which, indeed, being 
derived from the people, by delegation for an expfefs purpofe, 
is not in its nature alienable, and more efpccially, as fiich aliena- 
tion, wouli^effedl a difmemberment of the union. The word 
nppendage, or appendant implies in law, a conneaion with 
fome other fubjetft, abftraaed from which it cannot be contem- 
plated as a whole •, or in other words it is a quality, growing 
out of, and conneded with, a principal fubje^, unconncftcd with 
which, it can have no exiftcnce. " Appendant is a thing of in- 
heritance, belonging to another inheritance that is more wor- 
thy." * If then, this rcverfion in fee, was the fubje(5l of a 
complete right independent of any otlier connexion ; and could 
be held or transferred by an individual j it was fubjedl in like 
manner to be held or fold by the body politic of the ftate, 
which, as has been ftiewn, in this refpecfl occupied, all the qua- 
lities of moral agency, requifite to do fuch an aft. 

It is not contended, that the ftate could alienate its jurif- 
diftional right, or fovereignty, to individuals or to a feperatd 
nation for the reafons before given i and becaufe this right was 
then in abeyance i but a transfer of the reverfion in fee, which 

• Co. Litt. lax. b. 



r '9 } 

is a prcfent Intereft, though to take effei^ in future fubjcrt to 
the jurifdi(5lion of the ftate, when the policy of the nation fliall 
extend it, could take place as well by this method, as the ordi- 
nary mode of granting lands upon warrants, ^f. under the other 
Jaws of the ftatc. And the fovcreignty, in one cafe, is not af- 
fedled more than in the otiier j but was, in both cafes, equally 
cxercifed. 

But thofe who originated this difficulty mud have had re- 
ference to the pre-emptive right, refervcd to the ftate, at the 
time the Indian right of ufe was granted. It was juft to fo- 
cure the ftate in this right of being the firft purclufcr of the 
Indian claim, becaufe it was incident to the fee, and becaufe an 
extenfion of the civil policy, would be the confcquence of fiich 
purchafe. So far therefore as the pre-emptive right is con- 
ne<fled with an extenfion of the civil jurifdiftion of the ftate, It 
may be confidered an appendage to the fovereignty. But let 
the advocates for tliis principle take notice that this pre-emp- 
tive right, relates only to the Indian title which being in thp 
occupation of thofe who are treated as a feperate nation, can on- 
ly be purchafed under the fanftion of a national aft ; and as fet- 
tlcments andjurifdidlion will refult from the purchafe; as to 
thefe confequences it appertains to the empire of the ftate," 
as a quality inherently attached to the government. The right 
of aftual poflefllon however, being incident to the fee, will be 
vefted in the grantees, whenever the government is thus ex* 
tended. 

If, then, we underftand by the word preemption nothing 
more or lefs, than the right, to be the firft purchafer from the 
Indians ; admitting It to be incident to the ftate fovereignty j 
tl)is will not aflfeft the prefent queftion. The reverfion, alrea^. 



dy vcnc.l in tlx ftatc, vras the fubjccl of xUi coiiti-ift with th« 
purchafcs, who thereby becoming proprietors of the fw, the 
pcfrefrcry title will att.^!! itfjf to them by na of the law, when 
this pre-emption is cxeicifcd. 'Ihe rcUtivc fitiration, then, of 
the iUte, in rcfpca to its territory ,s, that the fovcrei»?ntv and 
nght of pre-emption is llili in the body iv,l,tif, and the aau.il 
intercft in the f^il, in i|,o purclu.^rs. by gmnt under toe f ..! of 
the a:.:c. 

This Intercft then confidered abrtra^edly from the fovc 
Tcl-ny and pre-emption, is, in legal intendment, and co.itcm- 
plation, theproperfubjedofa contrcirti and from its nature 
and qualities, is, and muft be alienable. 

I Iavin'g eflabliflied the fecond auxiliary propofition ; Wc 
/h.ill i>rocecd in the tliird place to ihevv, that the contra^, nud? 
between tlie parties, v as finally confummatcd. 

As the eftablifhrncnt of this point depends, principally up- 
on matters of ha, we beg leave to refer to the annexed appen- 
dix for tcainiony to fupport them. The firft requlfite docu- 
ir.ent is the ac^ of the legiH.Uurc of 1795, under which the con- 
traa was made. ♦ By this ad, the principles were eftablifhcd 
rpon \vhich the contemplated fale was to be made; and, in 
piirfuance thereof, the executive authority proceeded, to form 
the contrafl by executing grants to the fevcral companies of pur- 
chafers, t By thefe grants all the right which the flale had to 
the lands therein defined, is exprefsly transferred to thofe com- 
panies. But as the purchafers did not pay the whole confide- 
fation money upon the figning of this contract, a mortgage was 
t±:n upon the whole territory, purchafed, to become abfolute, 

^^--Vpemlix, No. 4. I Appendix, Xof J. 



r 11 1 

in the event of their faihng to pay the rcfidue at a day thereiu 
limited.* By thefc documents, it is fhc;^n, that a folemn 
contrad was made, by pcrfons, able and u WWnrr to contracfl, the 
ftipulations fiiirly cx'prcfTcd and pcrfcaiy underftood by the par* 
tics. Thefc ftipulations were hterally and piinduiilly perform- 
ed, within the time limited, and tlie morfgage extingiiiflied. f 
Here then, were fufficient parties, a thing to be contraded for, 
and a valuable confideration, paid and received, conditions fub- 
fequent, bona-fide performed, and a fiiul coiirmnn>:ii;oM of the 
bargain efFedcd. 

It may illuftratc the queftion, under confideration, to take 
notice, in this place, of the diftindion bctv.-een contraCls execut- 
ed and fuch as are executory. Conti ads executory, are fuch as 
take effcd and are to be completed, on tlie fubfcquent perform- 
ance of fomething to be done by one or both of the parties.—. 
In tins fpecics of contrads, the parties may confent to diflblve 
them at any time before the performance of the precedent con- 
ditions. But in contrads executed, the thing to be done or 
omitted, is performed at the time the confideration is received. 
Thefe cannot be diHblvcd or refcindcd, for the fubjed contrad- 
cd for and the confideration given, become abfolutely vcfted in 
the rcfpedive parties j and the property tlierein cannot be alter- 
cd, but by a new contrad. J 

To apply thefe rules to the cafe before us. The fubjcd 
or thing contraded for, which was the title conveyed became 
abfolutein the purchafers, at the execution of the grant j but 
as it was ftipulated, that this title fhould reveft upon the non- 
performance of a fubfequent condition, to wit, the payment of 
four hundred thoufand dollars, it was, in this refped, executory 

• Appendix, No. 6 f Appendix, ;. j Powd on contrudt, 415. 



Cn relation to tlic purchafcrs, and would have been refclndcd by 
aifl of the law, if this condition had not been performed, at the 
time prefcribed. This had happened on former occafions, 
where thefe lands had been fold by the ftate, to companies of 
purchafcrs, who, failing to comply, with the fubfcquent condi- 
tions, their contra<5ls determined and the title returned to the 
ftate. * But in this cafe the obligation on the purchafcrs, was 
ftrlclly complied with, the fale completely confummatcd j and 
the tide unconditionally confirmed. 

If then, the fovereign authority of the ftate, as a pioral 
agency, conftitutes a proper party to a contra<fl, and under the 
conftitution, had a right to alienate the property vefted in them i 
if the title conveyed, was, in its nature, alienable and the proper 
fubiecfl of a contrad j and if the contraft was made with the 
requifite folemnities and finally confummated: It will be fafc 
to conclude, that the fale of weftern lands by the ftate of Geor- 
gia in the year i795> was valid in law »nd obligatory upon the 
parties, 

"We proceed tlierefore, now, to enquire, whether this conr 
tnCty has fince been diflblved or refclnded. 

After ^vhat has been faid, it may appear unneceflarj? to 
enlarge upon this part of the fubjed -, having ftiewn that 
a contract pnce carried into efFc*.% cannot, upon legal princi- 
ples, be defeated. But as the condud of the political agency 
of the ftate upon this queftion, exhibits fo great a novelty in 
jurifprudence, and as the ads of fo refpedtable a body, however 
abfurd, demand attention -, it will be matter of curiofity as well 
as of ufe, to invert Igatc their condud and meafure it by thof© 

♦ Appendix, 8. 



t ZJ J 

principles, that are not C\ih]c6i to change or variatloh." In this 
inveftigation, the rcfcinding aft of the Icgiflature obtrudes Icj 
fclf upon us, as claiming our firft regard. Without entering; 
in this place, upon an expofitlon of the legal abfurdlty, of one 
of the parties to a contrad alleging its own dlfability or turpi- 
tude, as the means of defeating its obligation ; we rtiall, for the 
fake of argument proceed to examine this a6l, and the grounds 
upon which it profeffcs to reft. 

But prcvioufly to our entering upon the profcfTed merits 
of this aft, it will be neceflary to attend to fome diftinftions be- 
tween the nature and efFefts of the afts of a body politic, as re- 
fulting from their different capacities of legiflators, and agents 
for the ftate. For the want of proper attention to fuch dif- 
tlnftions, a ftrange confufion of ideas has prevailed extremely 
dangerous in its tendencies, and mifchlcvous in the confequen- 
ces already produced by it. All afts of the legiflature, whether 
laws or contrafts have been blended, under the general appella- 
tion of laws of the ftate*, and an opinion, thus created, that 
every fuccceding legiflature occupies the fame power over all 
the tranfaftions of former legiflatures. Tlie fallacy of this opi- 
nion, appears from what has been faid in defining the moral 
agency of the (late, as contradiftinguiflied from the authority 
of impofing laws •, and may be further illuftrated by examining 
the difference between a law and a contraft. The celebrated 
Puffcndorf, after explaining the necefllty of diftinguifliing be- 
tween laws and contrafts, proceeds : " A compaft is a promife^ 
" but a law is a command. In compafts, the form of fpeaking 
" is : Iwilldo foandfo \ but in law, the form runs : Do thoufo^ 
*' after an imperative manner. In compafts, fince they depend 
" as to their original, on our will we firft determine what is to 
i* be done, before we are obliged to do iti but in laws which 



T «4 ] 

** fuppofethc power of others over us, we are in the firft place 
** obliged to a<5l, and afterwards the maimer of our aAing is dc. 
•* tcrmined : And tlicrcforc he is not bound by a compaft, 
** who did not freely tie himfelf by giving his coufent; but we 
" are fortius reafon obliged by a law, becaufe we owed an nn- 
*' tccedcnt obedience to its author." * This reafonina is fo co- 
gent and convincing, that it is almoft unneceflary to enlarge up- 
on it. The fovereign authority of a ftate is contemplated in 
two diftintfl capacities. The one being the excrcifeof tliis au- 
thority in prefcriblng municipal regulations for the condii(fl of 
the citizens, and the other in the capacity of an agent for the 
ftate, in matters of contra(5b and ncgoci.itlon. The former com- 
prehends, all thofe public adls of the Icgiflature which operate 
over the whole community, and apply thcmfclves univerfally to 
the tranfacllons of the people. 1 hcfc are rules of civil condu<fl 
prefcribcd, for the regulation of fcclcty, and as applied to the 
j-ondufl of men, dictate the rules of right and wrong — fuch arc 
the laws for the diftrlbution of public judicc, for preferving 
peace in the community, fecuring the property of the citizens, 
regulating the revenue, &:e. Adls of this dcfcrlption are pro- 
perly laws i and as the circumftances of mankind in a ftate of 
foclety are liable to mutations, a change of tliefc municipal pre- 
cepts, is thereby rendered ncccflary, from whence originates 
the authority of the leglflature to alter, amend or repeal them, 
and fubftltute others in their places, as experience may direft or 
policy di(5late. This power is a necefl!\ry concomitant of the 
Jeglflative authority, and having its original in juftice, is a foun- 
dation-principle in the foclal compadl, and devolves therefore on 
fucceeding leglflatures by delegation. But this principle Co 
Well founded, and fo necefi'ary, to be excrcifcJ, in the cafe of 

♦ Piiffcndorf, L. N. N. 46. 



[ ^5 1 

laws, when applied to other aifls of the government becomes 
the inftrumcnt of injuftice and an agent of dcfpotifm. Hence 
fays Puffendorf, " we niuft take care likewife to diftinguifli tlic 
*' other adls of fovereigns, from their law, le.ift any fliould im- 
" aginc, that all their juft donations, alienations and compads, 
*' may be retra(5led by themfclves or their fucceHbrs. For iip- 
*' on thefc ails, a right is obtained by other men, which oii:;ht 
"not to be taken from th?m againft their confent."* We 
have already (hewn that tlie fovereign power is the f.imc in all 
forms of government, and that in republics, as well as mon- 
archies, there mud he a moral agency attached to this power, 
which holds the tenure of the public property and reprcfents 
the nation in matters of contract and negociation. This agen- 
cy, in refped to its contrads, muft be fubjed to the fame rules 
of right and wrong, and under the controul of the fame princl- 
f)les of juftice, that govern the tranfaflions of individuals. In 
all contrads, two perfons are fuppofcd, who ai5l under an 
equality of rights, reciprocity of interefts, and mutuality of ob- 
ligation. " In republics," fays the author of common fenfe, 
** it is the harmony of its parts that conftitutes their feveral and 
mutual good. But the ads of fuch governments, are legally 
binding, as much as if they had been made between two indi- 
viduals. The grcatnefs of one party, cannot give a fuperiority 
or advantaore over another. The (late or its reprefentatives, 
has no other power over an aft of this kind after it is pafled, 
than if the ftate was a private perfon. It is the glory of a re- 
public, to have it (o^ becaufe it fecures the individual, from be- 
coming the prey of power, and prevents might, overcoming 
right." 

* Puffendorf, L. N. N. 48. 

D 



[ i6 ] 

CdMTRACTS then, as dlftinguifhcd from laws, whethci' 
made by bodies politic or individuals, if executed, and legal at 
the time of confummation, arc, by the principles of natural 
juftice rendered irrevocable. And it is requiHte for the well 
being of fociety, that there fliould be pofitive precepts to en- 
force the application of thofe principles. For if after a legal 
transfer or exchange of property, cither party could, capricioufly 
reverfe the bargain, and rcfume the pofTeffion of that which he 
had voluntarily parted with to another, there would be an end 
of all confidence and commerce amongft men, an abolition of 
permanent property in things, and a final diflblution of all the 
moral obligations by which man is bound to his neighbor and 
his country. 

In fuch a ftate of things, the fovercign authority might 
leglilate in vain, as their laws would be without fancflion j all 
focial and civil regulations would loofc their validity j and, as in 
a ftatc of uncivilized nature, the weak would become tributary 
to the ftrong, the ignorant fubfervient to the cunning, and no 
one entitled to a right in things, longer than he could maintain 
pofleffion by the ftrength of his arm, or the ingenuity of artifice. 

TrtE fpirit of a contracfl, morally confidercd, is then, that 
the parties are bound to abide by their agreement, according to 
the truth of their meaning and the laws under which it is made, 
at the time of its confummation, without refpe(5l to after con- 
fequences, or a change of opinion upon the advantages refulting 
from it. 

The fpirit of a law is, that it (hall continue in operation 
until the reafons upon which it is founded, ihall ceafe to exift, 
or until policy (hall di(5late the propriety of altering or abrogat- 



I 27 3 

ing its force, and that It fliall give cffc6i to all tranfaflicns, in 
purfuancc of its provifions. The ohje(5ls of law are public 
good and individual fecurity ; the objefts of a contrad arc, the 
mutual convenience and advantage of the parties ; of which each 
being his own judge : his voluntary confent is required. Con- 
trafts are the aftions of moral agents, in relation to each otiier ; 
and when confummated ; are governed by general principles 
and pofitive precepts, which fecure to each the fame right in 
the thing acquired, that he had in the thing transfered. Law 
is the application of rules to the tianfadions of men, as they 
ftand in the complicated relation to each other, and the whol^ 
community j which rules may be modulated as the affairs of 
the community change. The relative duties of man to m.in, 
regard his moral agency and obligations, and are regulated by 
exifting laws and the principles of juftice j but the relative du- 
ties of the fovereign power and the citizen, have their origin in 
a political compaft, whofe objecfls are the equal rights of indi- 
viduals and the welfare of the whole community. 

From the foregoing remarks it follows, that the body po- 
litic, or public agency of the ftate, with refpcd to its contrads, 
rtands in the fame relation to the perfons with whom the con- 
tra(5t is made, and fubje(5l to the fame obligations that individu- 
als arc, in fimilar circumftances. And as the contracfl of an indi- 
vidual will bind his heirs and all others claiming under hi:n ; Co 
the contradl of a corporation binds its members in eternal fuc- 
ceffion. For as natural perfons are reprefented by their heirs 
and affigns, fo are moral perfons by fuccefllon •, and, on this 
principle, are faid never to die. They are perpetual and not 
tranfitory, and being at all times the fame in legal contempla- 
tion J however capricious they may appear under the direction 
of ardent and bpifterous members, they arc fubjeft to the 



[ »8 ] 

fame moral obligations with regard to their contraAs, as indlvi- 
duals i and their condu(5l meafurcd by the fame rules of right 
and wrong. \Vhatever vagaries fuch bodies may pradlife, they 
are always fubjedt to the controul of juftice. 'lime with re- 
gard to the principles which govern them, is *' an eternal now." 
And as thefe principles have their exiftcncc in the moral fyilcni 
of the world, they have always been the fame and will conti- 
nue to be fo, when the V/eftern Territory, together with the 
reft of the globe, Ihall be diflblved in the grave of nature. 

We fl\all now proceed to apply this reafoning to the cafe 
before us. The moral agency of the ftatc, from what has been 
faid of its povvers and qualities, might have made the falc in 
queftion, without an exercife of legiflative authority for that 
purpofe, if the exilllnr^ laws at that tim.c had provided for fuch 
a meafure. But as fuch provifions had not been made, it be- 
came neceflary to ena<5l a law, direding the ftate agency, in the 
cafe contemplated. In this cafe therefore the fovercign leglfla- 
tive power, and the incidental power of felling were exercifed in 
co-operation j and before the moral agency of the (late could 
effe(5l the contrail, an adb of legiflation was neceflary to pre- 
fcribe the rules by which the tranfiidion fliould be regulated. 
Accordingly an a(5l vvas pafl^ed, entitled j *' an a(5l fupplement- 
" ary to an acfl, entitled an a(5>, for appropriating a part of the 
" unlocated territory of this ftate, for the payment of the late 
" (late troops, and for other purpofes therein mentioned, de- 
*' daring the right of this (late to the unlocated territory there- 
*' of, for the protection and fupportof the frontiers of this ftate, 
*' and for other purpofes." ♦ By this a(5l it is declared, that 
^he trat*ls of land included within the boundaries there defined, 

* Appendix, No. 9. 



[ 29 ] 

Jhall he fold to the refpeftive companies therein named, *' and 
their heirs and afllgns forever, in fee-fimplc, as tenants in com- 
mon, and not as joint tenants," for the fcveral fums there fpe- 
cially mentioned. And that whenever the faid companies or 
their agents, fhould produce to his excellency the governor, a 
receipt figned by the treafurer, that they had depofitcd the firfl: 
payment, according to the tenor and effcdl of the a(5l, that it 
fhould be the duty of the governor to ifTue and fign to theref- 
pecftive companies their heirs and afllgns, a grant for the tratH: 
of country therein defined \ they firft fecuring the laft payment, 
by mortgages to the governor and his fucceflbrs in office, on 
the whole of the land fo granted •, which mortgages were to be 
immediately foreclofed in cafe default was made in the laft pay- 
jnent at the day prefcrihed, and the grant in that event, to be 
confidereda nullity. After the pafling of this ad, which ope- 
rated as anexprefs declaration of what the ftate agency willed to 
be done, as well as a legiflative dire<5lion as to the manner of 
executing that will j the governor under the diredlion of this 
law, and in obedience to that will, proceeded to carry the latter 
into efFedl, in compliance and according to the provifions of the 
former. As the body of a natural perfon would aft in fubjcc- 
tion to the mind \ the executive organ of this moral perfon car- 
ried its volition into adlion. 

This then, was a performance of that part of the contrad, 
which appertained to the ftate, as one of the parties •, and in 
the capacity of a moral agent ; a declaration of its aflent to the 
thing propofed — and, in teftimony of this folemn agreement, 
the grants were figned, fealed and delivered. And on the part 
of the purchafers the figning of the grant is evidence of the 
payment of the depofit money, and the extinguiftiment of the 
mortgage, that the laft and final payment was lonafide madci 



[ so ] 

by which the contraft became legally confummatcd. The lan^ 
conveyed became the abfolutc property of the purchafers, and 
the confideration given the property of the ftate. 

In this tranfa(5kion, we obferve the cxcrcife of the fovc- 
reign will, in two diftindl capacities ; the firft, as a Icglflaturc 
prefcribing rules, the fecond, as a moral perfon difpofing of part 
of its property according to thofe rules. After the pafling of 
this law, it became legal to fell in this method, and when the 
grants were executed, it was an a(5t of the body-politic, autho- 
rifed and fandlioncd by the law. And j^s this contra<ft was 
not diflbived by a failure in the performance of the fubfequent 
conditions, but carried into complete efFcft and fruition, it re- 
mained fubjed to the fame rules and on the fame ground^with 
regard to the principles of juftice, with all other contrails 
already executed. It could not therefore be affctflcd, by any 
thing expojl fa£iOy or its obligation impaired, by any fubfequent 
leglflative a<5l. 

With thefe preliminary remarks, we proceed to examine 
the B(5l in quedion. The two main pillars of this celebrated cu* 
liofity, in political architc(5ture, are uncoHJliiutionality und frand. 

Upon the firft of thefe* the preamble of the biH takes its 
ftand : " Whereas the free citizens of this ftate, or in other 
«» words the community thereof, are efTentlally the fource of 
>* the fovereignty of the ftate, and no individual or body of 
»* men, can be entitled to, or vefted with any authority which 
♦* is not exprefsly derived from that fource, and the exercife or 
** aflumption of powers, not fo derived, become of thcmfelvct 
»* oppreflion and uAirpation ; which it is the right and duty of 
H the people or their reprefentativcs to refift, and to reftore the 
f' rights of the community (b ufurped and infringed." To this 



lllMim !!■ Ill ■■ 



C 3» ] 

declaration we do not hcfitate to fubfcHbe, without any feir 
of its weakening the grounds wc have taken. In a reprcfcnta- 
tive government the people muft be the original fource of fov- 
creignty j but it doth not follow from hence, that the body po- 
litic, in whom the fovercignty is veftcd by delegation, has not 
the abfolute controul of the public property or eminent domain. 
This as we have fully rtiewn cannot remain in the people as 
tenants in common, but murt attach itfelf to the corporation 
which occupies the moral qualities of the flate. And altho* 
the conftitution Is cxpreflive of the will of the people, fo far as 
that will regards the delegation of the leglflatlve authority -, yet 
unlefs the conftitution, which we confider the charter of this 
corporation, had exprefsly prohibited the right of purcbq/ing and 
fel/in^ : thcfe incidents are nece/Tarily implied, in the nature of 
the inftitutioh. As this bill tlien declares the contradl to be in 
itfelf void ; we fhall enquire whether there is any thing contain- 
ed in theconftitutlon, or charter linder which the legiflature acfled, 
dndby which they were organized, derogating from fuch an adl of 
legiflatiori, or which prohibits fuch an excrcife of the corporate 
right, as was exhibited in cfFctfling this fale. 

ThAT part of the ftat^^ conftitution upon which the advo- 
cates of this bill took gr^jund — is firft, the 1 6th (c6i. of the i ft. 
article, which declared : " that the General AfTembly ihall have 
•* power to make all laws and ordinances, which they fhall deenl 
•* heceflary and proper for the good of the ftate, which ftiall not 
" be repugnant to this conftitution." * By this exprefs delega- 
tion, the legiflative authority had power to make all laws and 
ordinances, which a legiflature for the time being, might deem 
ncceflary and proper, for the good of the ftate, provided thofe 

* ConflUutioQ of 1789. 



[ 3> ] 

a(5ls were not repugnant to fome part of the conftltutlon. This 
was a complete fovereign authority, derived from " the cflential 
fource'* of power* and no aft could be deemed " afliimption" or 
" ufurpation" which was not exprefsly prohibited by fome part 
of the conftitution. 

BiTT the advocates of this bill fay, the law in qucftion was 
repugnant to the conftitution, not being calculated to promote 
the "good of the ftate i" and they furnifh their rcafons for this 
opinion in the bill itfelf This however from the authorities 
before cited, and the reafons thence deduced ; can have no efFed 
in rendering the former afl, or any contraiH: made under it void 
from the beginning i bccaufc that legiflature or the members 
compofiug it for the time, wielded the foverign authority, and 
ailing under the conftitution of the ftate, had an unqueftiona- 
ble right of making fuch laws and ordinances as tbey deemed 
requlfite for the public good. Nor can it be faid, with any fe- 
rioufncfj, that becaufe the members of the refcinding legiflature, 
differed in opinion, with their predeceflbrs, that the adl of the 
former legiflature was conjliiutionally void. This indeed would 
be an afluniption of power not delegated, and an ufurpation of 
the judicial authority which had been placed exclufively in anoth- 
er department.— Had the legiflative authority under the direc- 
tion of thcfe members, attempted to repeal the ac^ of i795> fo 
far as it was in nature of a Iwj) •, it is not denied, that they 
might have done ^o. But in fo doing they could not have af- 
fe(5ted a contrail made under the law while it remained in force : 
6f this, however, the framers of the bill were fully acquaintedi 
as well from general principles, as from the prohibitory claufe 
in the fuprenie law of the land that no ftate fliould pafs an 
" ex pojlfauio law, or law impairing the obligation of contradts." 
It was, therefore, of much confequence with them, to render 



[ 33 1 

the a6l ipfofaSIo void. In this however they haVc failed. For 
\\it legiflaturc of 1794, by pafliiig the a<5l, have furnifhed the 
higheft evidence of their deeming the law, "for the good of the 
fta:e i" and as it was not repugnant to any part of the conftitu- 
. tion, its validity could not be dcflroycd. 

But it was alfo contended, that this aft was repugnant to 
that part of the then conftitution which declares, " the legifla- 
" ture fhall have power to alter the boundaries of the prefent 
** counties, and to lay off new ones, as well out of the counties 
»* already laid ofF, as out of the other territory belonging to the 
*' ftate.'* 

The fophiftry of the arguments which they have drawn 
from this claufe, is expofed by the words it contains ! It was 
evidently an exprefs delegation of power, which related to the 
civil police of the ftate, and not a prohibition or reflraint on the 
legiilature, in exercifing their judgment, as to the ]aws that 
would beft promote the " good of the ftate." The purpofes 
to be anfwered by bying off new counties, were to apportion 
reprefentation, and to eftablifh tribunals for the adminiftration 
of juftice. That thefe were the objeds contemplated in that 
part of the conftitution, appears from the words that followed 
it : " And when any new county fhall be laid off in the vacant 
** territory belonging to the ftate^ fuch county fhall have a num- 
" bcr of reprefentatives, not exceeding three, to be regulated 
*' and determined by the general affembly." The exercife of 
this right however, was reftrained by the national fbvereignty ; 
which had prohibited a purchafe of the Indian title without the 
concurrence of the United States; it could not therefore be. 
brought into action, before that title was extinguifhed, and the 
jurifprudential limits of the flate thereby extended. As the 

E 



[ 34 I 

ftiitc, then, was not rcftrained from difpofing of the iiitcreft iii 
the foil, the power delegntcd to them, of laying off new coun- 
ties, in the vacant territory, creates no repugnancy with the adl 
under which the fale was made. 

Bur it is prcmifcvl in the rcfcinding bill; that the lands 
fold, not being within the limits of any county, if the fale fliould 
take effc(5t, the territory could not be deemed vacant ^ within 
the meaning of the conftitution ; that the general aflcmbly 
would be thereby barred from laying it off into counties, and 
the fvtilvTS deprived of reprefcntntion ; th;;t it wculd there- 
fore opcr.Hij as a rclinquifl^.mcnt of the right of taxation, a de- 
relidion of jurifdi(5lional rights, and, by adifpofal to foreign pow- 
ers, mlr;!\t produce a difmcmberment of the ftate. If thefc 
mifchicfs were to icfult from the law, it would prove a perni- 
cious mcafuic i but could not from thence be called unconftltu- 
tional i becuife it was not a pre -rcquifite to extend the civil ju- 
rildidion of the flate, before the intcrcft in the foil could be fold. 
But to fhew that fhcfe evils arenotto be feriouily apprehended, 
it will only be neceflary to a^lvcrt to the definition of the title 
fold to the purchafcrs. This was a revci fion in fee which was 
verted, in the moral agency of the (late, abftraded from the pof- 
feflbry title whicli had been carved out for the Indians, and the 
exercile of empire over this territory when that title fhouhd be 
extinguifl-H:d. It is not contendeJ, that tlic purchafers have ac- 
quired a right of jurifdidion over the territory purchafed, this 
was exprefsly referved by the a^, and is not in its nature aliena- 
ble to individuals •, there can therefore be no danger of a dif- 
mcmberment, by a fale to a foreign nation. AH the purchaf- 
crs claim, is the reverfionary fee on tlie extinguifhmcnt of the 
Indian pofleffion, a prefcnt intercft though to take efTeA in fu- 
ture •, fubjea however to the jurifdiaion of tl.e (late, whenever 



[ 35 1 

ft is extended by that event. The right of laying the territory 
off into counties and apportioning reprefentation, may thc:i he 
cxercifcd -, for the territory as to the purpofos of empire will 
then be vacant \ and the right of taxation being incident to the 
fovcreignty, may heexercifcd on the fettlers of the land, who will 
then be cltiz.-ns of the ftatc, and fubjeft to its municipal regula- 
tions. The mifchiefs, therefore that were anticipated from the 
adl, together with its repugnancy to thcconftltution, are altoge- 
ther chimerical and cvanifli at the approach of truth and right 
reafon. In this aflertion, we are fupportcd by the uniform un- 
derftanding and repeated a<5ts of this ftate and the United States, 
of which on account of their authority, we beg leave to intro- 
duce a fliort hiftory. 

In the convention which formed the national compaft, it 
was ftrenuoufly contended, that thofe ftatcs which had an ex- 
tent of unappropriated territory within their chartered limits, 
(hould relinqulfli it to the United States, as a fource of national 
revenue. But this point not being carried, each of the ftates, 
having fuch territory, wasexprefsly fecured in their right there- 
in, to be appropriated to their individual ufe. The territory, 
therefore, v/ithin the limits of this ftatc, being its public pro- 
perty or domain, has always been confidered, as refting upon 
.the fame footing with the public property of other dates, and 
like theirs fabjec^ to legiflative difpofition : and that the (late fo- 
verelgnty after the example of the national government upon 
the fubjcrt of the territory which had been relinquiflied by fomc 
of the ftates under the confederation, might make difpofitions 
of that which had been fecured to her, by holding out advan- 
tages to fetilcrs and prefcriblng the mode of fcttlement, or by a 
file to companies of purchafcrs, on fuch conditions and under 
fuch reftricliuns as might bsfl fecure the " good of the ftate." 



P 3« ) 

With regard to the difpofitions» made by the federal Icglflatur* 
they have been various. But although there is no exprefs de- 
legation ill the federal compadl in relation to a fale of territory, 
no doubts, were ever entertained about the conftitutionaiity of 
fuch Tales ; nor was an alienation of the intcreft in the foil, con- 
templated, as a furrender of" jurifdidkional rights,** or in any- 
■wife affcding the national fovercignty.* The afts of other 
dates having vacant territory, in difpoHng of it to companies, or 
otherwife without any exprefs dioedion in their cbnftitutions, 
all prove the undcrftanding of the American people upon this 
important fubjed.f Inde^Kndent of the arguments to be 
drawn from the condu(5l of our fiiler ftates, and the United 
States upon this point •, the hiftory of the policy of our own 
ftate upon the fame quedion, proves the levity and expofes the 
futility of the arguments of the rcfcinding gentlemen. 

Tjic firft notice taiken of the territory in queftion by the 
legiflatqrc of Georgia, fubfequent to the revolution was in the 
aft for opening a land office \ pafled in Savannah^4li February 
1783. In this a(fl, 'after defining the boundaries and jurifdic- 
tional rights of the ftate, we find a provifo, that nothing there- 
in contained fiiould be conllrued to extend, to authorife any fur- 
veyor or other perfon to make lines upon the lands referved for 
the Indians to ** hunt and live on," nntil permijion for that pur- 
pofejbould be granted by t^f legijlature and made known by procla- 
mat ion. This ad, fp far from containing any doubts about the 
ponftitutional right of difpofing of the territory, is an expreft 
declaration to the world that this right would in future be excr- 
cifed. In February 1785, the legiflature proc^edec^ to appro- 
priate a part of their vacant territory, by defining the limits of 
(I county called Bourbont and determining the. price to be paid 

♦ Appendix, Ko. 10. . t Appendix, No. 11. 



r 37 1 

by thofe, who fettled therein, whenever a future legiflature ftiould 
determine to iflue grants to fuch fettlers. Although no a(5lual 
fettlements were made immediately, upon the territory fo ap- 
propriated, yet by fixing the price to be paid, and fecuring a 
right of preference to adual fettlers : they exercifed tlie right, 
which the refcinding gentlemen now fay is repugnant to the 
conftitution.* In 1787, congrefs having made application to 
the ftatc of North-Carolina, for aceflion of her vacant territory ^ 
the (late of Georgia, in the year following, exercifing the au- 
thority, which congrefs had recognized in the legiflature of 
North-Carolina i made a conditional ceHion of her territory ( 
which however the national government not approving on ac- 
count of the terms, thought proper to rejeft.f 5ut this con- 
ditional celTion having left it with congrefs to rejedt or accept 
the con trad, was therefore an cxercife of the fame agency over 
the domain of the ftate, as was exercifed by the fame body in the 
year 1 795,and in the preceding year. In Odober 1787, the legif- 
Jature of QMI-gia, pafTcd " an a<5l for furprefTing the violences 
♦• of the Incfians" by which a part of the vacant lands was carved 
out, to compenfate the ftate troops, who were organized under 
the aft, for the protection of the frontiers. In this aft it is de- 
clared, that all the lands lying without the limits of the refpec- 
tivc counties of the ftate arc vacant, " and that a traft of land 
** lying and comprehended within a line to be drawn from the 
•* moft fouthern ftreaih of the fouth fork of Oconee, pommonly 
♦* called the Appalachee, &c. (defining the limits and bounda- 
«* ries: J) Shall be referved and at the cefTation of the hoftilities 
•* with the Indians, appropriated to and for the allowances and 
<♦ bounties of and for the faid officers and troops j and no warrant?, 

♦AppendiK, Bourbon aft, No. 12. f Appendix 13. 
X Sccihc aa of 1787. 



t 38 ] 

" furvey or grants ftiall be obtained, for any part of the lands, 
** within the faid rcfervc by any perfon whatever until fuch hof- 
" tilitics fhall ccafe, and all fuch officers or troops fliall have a 
** preference in laying their bounties within the faid refervc." 
In May 1789, the conlVitiition, was adopted under which the 
fdti was made to the companies. And in December of the 
fime year, the appropriation before made to comptnfatc tho 
flatc troops was recognized in." an ad for making compenfa- 
tion to the troops in tlic fervice of this ftate, for difcharging the 
faiJ trocos and fccuring the public arms." In this adl the 
troops are declared to be entitled to the fame bounty of land 
that was pointed out to them rcfpedlively, in the ad for furpref- 
fing the violences of the Indians.* And this difpofition of the 
territory in favor of the troops, has been mentioned in confirm- 
atory terms, at almofc every fefiion of the legiflaturc down to 
the d.Uc of the prcfcnt conftitution. At tlie fame feOion in 
1 7-89, *under the fame authority by which the appropriation, in 
favor of the (late troops, wa^ confirmed, the general aflcmbly 
pafled an ad dircding tlic falc of a confiderablc part of the un- 
appropriated territory to three companies of purchafers upon 
the terms therein ftipulated.-}- But as the executive was not to 
fign and execute the grants, until the precedent conditions were 
•performed on the part of the purchafer<s, the contrad was never 
confumnVarcd through their default.* This ad, which pafled, 
during the aJminiflration of governor Telfair, concludes with a 
declaration ; that the remaining territory (hould be difpofed of 
as that, or a future a fie nib ly might dired, and in no other manner. 
Although this meafure was at the time fomewhat unpopular, 
and confequently met with oppofition in its progrefs and fame 
jcnfure after its adoption i yet none of the leading char^dcrs ii^ 

* See the aa of 1789. f Sec ihc aft. 



[ 39 ] 

tnc mirtoiity attempted to deny its conftitutloiiality or to at- 
tempt its difTolutlon. But all acknowledged that ifthe compa- 
nies complied with the ftipulations upon which the contraft 
was to take effetJl ; that their tide would be indcfcafible. That 
this is a ftatc of the faft, appears inconteftibly by the condud 
of tile fuccecding legiflature. After the pafling of the av5t, im- 
dtr which this falewas to bceffcilcJ, a mifunJerrtanding took 
place between the parties as to the payments ftlpulated ; the 
purclKifers allcdgitig tliatthcftatc ought to receive its depreciated 
fecuririe?, and the llate agency denying that any tling but fpe. 
ciewns intended. This difrcrence of opinion produced a con- 
curred re folution of the two houfes in June 1790, tliat the 
treafurer (hould receive nothing but gold anJ filver, and the 
p:iper medium of the flate, in paymcut of debts due the ftate. 
The companies complained of this proceeding and charged it 
to be a departure from the original underftanding of the par- 
tics i and an attempt to impair the obligation of the contraft. 
Thisi however, the legiflature did not profefs to have done, or 
that they had power to do Co, but >iindicated the equity of .the 
mcafure by ah appeal to the Words of the afl ; and, in juftice to 
that legiflature, we cannot fofbear to obferve, that their con- 
ftru(5tIon wns^ ftri(5Hy conformable thereto* For it is to be 
obferved, that, at the time of pafling this a<5ialmoft all contra(5ls 
whether public or private were made, all accounts kept, fees 
and falaries of public officers fixed and paid, in poundsfftiiilings 
afid pence •, but in this adl the fums mentioned, were definite 
numbers of dollars, which denomination of money being differ- 
ent from the circulating papers of the ftate, and the mode of 
calculation, in general ufe, appears to have been adopted by the 
kgiflature, in order to prevent fubfcquent mifunderftandings up- 
Ip the fubjedl, and was tantamount to an exprefs declaration that 



[ 40 3 

ho papers would be received, as the confideration of the con- 
tradl contemplated. This opinion is confirmed by adverting 
to the time given to the purchafers to comply. It cannot be 
prefumed, that two years would have been allowed, if paper 
had been intended i for that was in the power of the purchafers 
to co\\e6i in a mUch Icfs time, on account of its great depre- 
ciation. This explanatory rcfolution, having defeated the 
hopes of the companies, toeflfcdl their impofition on tJic ftatc, 
they finding it either impofllblc to comply with their engage- 
ments, or that the advantages of the purchafe would not be 
equal to what they had anticipated, neglc(5led to make pay- 
ment 1 by which failure, at the end of the two years the contracfb 
difToIved, and the lands remained as before a part of the dd- 
inains of the ftatc. 

With the authority of fo many precedents and thus fane- 
tioned by the wifdom of the whole nation, it is not fiu-prifing, 
that the legidature in 1794, found no conftitutional impe- 
diments in their way. But the conduift of the refcinding legif- 
lature is not fo eafily reconciled. The authority of national po- 
licy ; the condud of moft of the ftates having vacant or unap- 
propriated lands, under conftitutions not difFerent in relation td 
the fubjecl, from our own j the repeated ads of our own govern- 
ment both before and fince the adoption of the conftitution uii* 
der which the falc was made j the exprefs letter of the ftate con- 
ftitution and the folemn prohibition of the national conipaft, all 
confpired to forbid their proceedings. This body therefore 
muft be confidered, as having a(*led, under the influence of pre- 
judice* rather than principle, or a 2cal that was «* not according to 
knowledge." Or as the author of Common Scnfc exprcffc# 
himfelf upon a fubjca: of this kind : *♦ It is pofllbl« that an 9£^ 



[ 41 ] 

" fembly. In the heat and indlfcrction ofparty, and meditating 
** on power rather than the principle, by which all power, in a 
" republican government is governed^ thztof equal J u/liceym:iy 
" fall into the error of pafllng fuch an a(5l i — but it would be 
" an adiefs adl, an aft that goes for nothing, an aft which courts 
'* of juftice and the eftabliflied laws of the land could know noth- 
" ing of.'* The pureft motives may have aftuated them ; but 
their conduft as a moral perfon, cannot be reconciled to thofe 
principles by which fuch bodies are, and mud be governed ; and 
here we are conftrained to obferve, thtit many of the moft ftre- 
nuous advocates for the refcinding bill, as zealoufly urged a 
falc of the territory, in the legiflature of 1 794, with a httle dif- 
ference as to price. FidCy Journal of 1 794. 

Whatever good the authors of this bill might have In- 
tended the community, to fanftion their political doftrines would 
beproduftive of mifchiefs tofociety and injufticeto individuals. 
All the fales, that have been made by the public to Individuals 
of property that had been confifcated, or reverted to the ftate, 
would thus be rendered null, and void, and the purchafers left 
without remedy. For if the conftitution reftrained the fale of 
public property, that reftraint applied equally to every fpecies 
of public prof)erty. All the titles derived from the body poli- 
tic, whether by purchafe, or donation, would, under this funda- 
mental reftriftion, be confidered as furreptitious, and their te- 
mires annulled. The appropriation for the ftate troops above 
mentioned, not firft being laid off into counties, or fecured to 
them by legitimate authority, would be null and void ; and 
the toils of the beft of our citizens paid, with the promife of a 
thing, which was not in the power of government to give. It 
may be faid, this was not a fale of a large traft of country to a 
few individuals amounting to a monopoly I But it was an ap- 

F 



[ 42 ] 

proprlation of vacant territory in confideration of fervlces ren- 
dered the ftate v a compenfation in lands, in place of money ; 
and the fame authority was required to do this, the fame pow- 
ers exercifed in eftc(fling jt, that were exercifed in making the 
fale in queftion. And as to the idea of a monopoly •, the rights 
of thefe troops, might all be purchafed by a few perfons, and 
as great a trad of land f^ill into the hands of individuals in 
one cafe, as in the other. But with regard to the requifite pow^ 
er in the legiflature, if they were authorifed by the conftitution 
to appropriate a fingle acre of the unlocated territory — their 
power thereby extended to approprFate the whole. We main- 
tain, therefore, from the exprefs letter and fpirit of the confti- 
tution, under which the aift of 1795 was pafled ; from the fev- 
cral national atfls recognizing the right of felling in the ftate le- 
giflaturcs •, from the uniform pracflicc of other ftatcs concerning 
their vacant territory •, from the fenfc of fcvcral fucceeding le- 
giflaturcs in this ftate upon that fubjcdl, and finally, from the 
exercifc of this authority in the cafe of the ftate troops, receiv- 
ing the fanftionof the refcindingand fubfequent legiflature i that 
the charge in the preamble of the annulling bill, againft the le- 
giflature who fold the territory in queftion, of" ufurping a power 
not vefted in them •" is clearly unfounded, and that the de- 
claration : that " the adl of 1795, and the grants under it, 
are ipjo fa^o void," in the fcalc of found argument, weighs no- 
thing. 

But the advocates of this bill muft have been confcious, 
that their firft ground was not tenable, or they would have 
deemed it unneceflary to declare, that to be void, which accor- 
ding to their own maxims was in its nature a nullity. That 
they were fo, is evident from the following remarkable wordsi 
in the firft enadlinr claufe : after reciting the title oftheadl 



^■ 



•%^ 



[ 43 ] 

of 1/95, it proceeds — " he and the fame is hereby declared to 
•* be annulled^ rendered voidi^ and of no effedl, &c.'* If the adl 
and thccontra(5l under it were ip/o fdSIo void •, how could they 
be rendered more fo by this bill ? If they were by this bill an- 
nulled and rendered void and of no effctfl : without a contradic- 
tion in terms, they mufl: before have been binding, valid and ef- 
fe(5lual. And being fo, at the time the contraftwas confum- 
mated : this declaration, could not have impaired the obliga- 
tion of the contrad, even if the ftate had not been a party. 

Although what has been faid might be deemed fufficient 
to evince the futility and inefficacy of the firft ground of the ref- 
cindingproceedingi yet as all arguments advanced by the Col- 
le(5led wifdom of a ftate as concentrated in the legiflative afTem- 
bly, are entitled to notice •, we fliould be deficient in point of 
duty as well as decorum, were we not to attend to fome other 
parts of this extraordinary proceeding. 

The declaration in the fecond claufe of the preamble, is 
led up with majeftic pomp, in the following words : *' And 
** whereas the will or conftitution of the good people of this 
** ftate, is the only exifting legal authority derived from the ef- 
" fential fource of authority, and is the only foundation of tho 
" legiflative power or government thereof, and fo far as that 
** will or conftitution exprcfsly warrants, the legiflature may 
" go, but no farther •, and allconftrudive powers, not neceflariiy 
*' deduced from that exprefTcd will, are violations of that cf- 
»* fential fource of fovereignty and the rights of the citizens, 
** and are therefore of no binding force or efFedl, on the ftate or 
*' the good people thereof, but null and void." If this declara- 
tion was literally true, and the legiflative power did not extend, 
to make ** laws and ordinances" which its reprefentatives might 



[ 44 ] 

*' deem neceflkry and proper for the good of the ftatc :" our 
fyftem of jurifprudence would be exceedingly circumfc;ribed. 
No law could have force or validity, the objedts of which, 
were not evidently deducible from the letter of the conftitution. 
The a(5t regulating flaves in this (late in the rear of a long co- 
lumn of ftatutes, with the confifcation acft, the acfls appropriat- 
ing lands in favor of the late ftate troops, and the late purcha- 
fers in the van, in folemn proceffion muft march into oblivion* 
without a tomb, to commemorate their cxiftencc. All of them, 
** ufurpedy* uncreated non entities ! 

But we find the advocates of this bill, difdaining the nar- 
row policy they had prefcribcd for others ; and as foon as they 
had finiihed the florid declaration on the cflential rights of the 
people they abandoned, their own maxims, and alTumed con- 
ventional powers upon the ground of a loofe rcfolution. This 
afTumption, prefents fuch an inftance of glaring inconfiftency in 
that proceeding, we take the liberty of reciting it in their own 
luiguage. " And whereas the faid petitions, and remonftrances 
** of the good people compofing the ftate, to the faid late conven- 
" tion*, held at Louifville, on the faid tenth day of May, one 
** thoudind fcvcn hundred and ninety-five, produced a refolu- 
" tion of that body in the following words :" " Refolved, that 
** it is the opinion of this convention, from the numbers, refpec- 
" tability and ground of complaint, ftated in the fundry peti- 
" tions, laid before them, that this is a fubjeift of importance 
" meriting leglflative deliberation." ** Ordered therefore, that 
*' fuch petitions be preferved, by the fecretary and laid before 
" the next legiflature at their enfuing fefllon.'* " Which re- 
*' folution inverts this legiflature with conventional powers^ quo 
f» ad hoc or in common terms, for the purpofe of inveftigating 
f» the fame, and which gives additional validity to legiflative 



[ 45 ] 

<* authority, were the powers of one legiflature over the a^s of 
" another, to be attempted to be queftioned."* Tliispartof 
the preamble when compared with fome parts that precede it, 
furnifhes convincing proof, that the projecl had not been well ma- 
tured. In their outfet they deprecate all legiflative powers, not 
cxprefsly delegated ; and before their arrival at the firft enading 
claufe -, we obfervc them afluming the powers of a convention, 
without any exprefled or implied delegation, in the conftitutiorx 
to warrant fuch an attempt. This conventional power they 
profefl*cd to occupy, quo ad the petitions and remonftrances of 
the ^^ people compofmg the ft ate ^^ whofe obje(5l, it is faid, was to 
abolifli the fale. From their expreflion : " the people compo- 
fing the ftate,'* they muft have intended to convey an idea, 
that the whole community, which being *' the eflential fource 
of fovereignty" had a right to di<5tate what (hould be done in the 
premifes V had tranflated their powers to the convention, which 
had afligned over the fovereignty fo tranflated quo ad hoc, to 
this legiflature. It does not appear however, that more than 
one twentieth of. the people of the community figned the peti- 
tions and remonftrances in queftion. So that admitting the 
efficacy of the conventional tansfer, it could only operate quo 
ad the fubjedl transferred i and as no more than one twentieth 
part of the efl'ential fource of fovereignty could be acquired by 
the negociation •, upon their own principles they aflumed powers 
with which they had not been inverted, by the remaining nine- 
teen twentieths. Unlefs by a kind of political magic, they can 
make it appear, that the one twentieth part of the people who 
figned the petition, &c. conftituted, and were exclufively the ef- 
fential fource of foverigrtty ; and the remainder, by withholding 
their fignatures, were devefted quo ad hoc, of the fliares they 

* Appendix, No. 14. 



I 46 ] 

held in the foclalcompad^. But to be fcrious. It the falg was 
once valid, it was not in the power of this convention to render 
it otherwife, much lefs to delegate a power to the legiflature by 
a refolve in their journals, to efFe(5l an obje<Jt, which they, as a 
convention, found themfelvcs incompetent to attain. This ex- 
pedient, however, was adopted as the bill itfelf declares, to mec* 
any attempts to que(lion the power of one legiflature over the 
ads of another. It was well known that the power of repeal- 
ing /jwj would never be queftioiied, becaufe, as has been fliewn 
it is an infeparable concomitant of the legiflative authority* 
But it was alfo known that the right of a legiflature to nullify 
a contra«5l executed under an exifting law, and to impair or dc- 
(Iroy its obligation, es pojl fa^Io^ was barred by the principles 
of natural juftice, and the fuprcme law of the land. .It was 
from this knowledge, that conventional powers were fought af- 
ter and afllimcd upon fo flender a pretext, contrary to the florid 
declaration that preceded the aflumptlon. But it may with 
propriety be aflced : if the transfer of conventional powers " ^«tf 
dd hoc" gave additional validity to legiflative authority •, or if 
thofe powers were requifite, quo ad, the fubje<5l in queftion • 
why were they not exercifed by the convention, which if they 
did exifl, were alone in the legitimate occupation of them ? The 
anfwer is eafy. It was becaufe that auguft body, duly imprcf- 
fcd by the obligation of the national compad, did not contem- 
plate fuch a power in themfelves or any other body in the ftate. 
All they could have intended by the refolution concerning 
the petitions and remonftrances, was to provide againft the mif- 
demefnors, charged againft certain individuals,and toprcfcribe a 
punifhment for perfons in fuch cafes oflFending. But the authors 
of this bill had another objed: in view, and, feeling their imbe-. 
cility in the capacity of legiflatois, vainly attempted againft their 



i 



^ 



[ 47 1 

own maxims, to borrow powers by Implication, which did not 
cxift, and to give them adirecflloniri which they could not opi- 
ate. In this tranfadioM they have deviated from their prefcribed 
orbit, and having rf^/;;/r^ an executive courfe, but for the attra(5^ive 
and controuling influence of the federal centre, would continue 
to wander through the unexplored regions of political abfurdity. 
It is remarkable that the Icgiflature on this occafion, did not 
attempt to exerclfc the acknowledged power of repealing the ad: 
of 1795 •, but contented themfclves with declaring firft, that it 
was null and void., and fecondly, that It was thereby annulled and 
rendered void. With refpeft to the firft of thefe declarations, 
^t has been (hewn that the cafe was not thereby altered j for that 
which was of itfelf a nullity, could not by this means be ren- 
dered more fo. With regard to the fecond, which feems to 
imply an agency, over the fubje(5l ; it appears to be, in the al- 
ternative : that is to fay, £/thca(5l of ninety-five, is not uncon- 
ftitutional and ipfo fa5lo void— we hereby annul and make it 
void. Having clearly proved it was not unconftitutionally void ; 
the efFed and extent of this annulling agency, exhibits the only 
difficulty to be encountered in this part of the fubjedV. 

It is difficult to conceive and much more fo to exprefs, the 
idea of a power in the legiflature, to nullify, abftraded from 
the power of repealing. A repeal is no more nor Jefs than an 
abrogation of a law, before in force. This feems not to have 
reached the objcdl ; for a repeal of the ad could not have af- 
fe(5tcd any tranfadion under it, previous to the date of the re- 
peal. The term nullify was therefore fubftitutcd as the vehi- 
cle of their new fangled idea, of the complicate conventional 
and legiflatlve powers, which they profefled " quo ad hoc,''* to 
occupy and exercife. This was to have a mightier operation 
than a fimple legiflatlve ad. It was not declaratory of what 



the law was, or had been ; it was not fimply to repeal or abro- 
gate a law until then in force or to proclaim what ftiould be 
law in future •, but, like the fworcl of Gabriel, it was to cut in 
every dlre<n;ioii. Not contented to abrogate the law in the or- 
dinary method, the blow was direded to its origin •, although 
not a nullity from the beginning, this bill was to have a judicial 
relation back in declaring it to be fo— and theadl itfclf being too 
fmall a theatre for the exhibition of this majedic and annihilat- 
ing power : the phial of their awakened wrath was poured out 
upon all thecontiads made under it, and left the evidence of 
them niouid contaminate the world, their records and indexes, 
were confumed forever. It will be unnccelTary to recapitulate 
v/hat has been faid upon the impoinbility of conventional pow- 
ers, being blended with legiflacive authority, or to add, that if 
this legiflature had poirefl*ed them, they could only have had 
relation to the time of the delegation, and muft alfo have been 
exercifed under the controul of the conftitution of the United 
States. We (hall proceed therefore to take up the annuHing 
claufe of this bill, and examine the bads upon which its founders 
have chofen to reft it. This claufe after reciting the title of the 
a(5l of 1 795, and declaring it to be iimulUd, rendered void \indof 
710 effe5ly proceeds : " and as the fame was made without con- 
" ftitutional authority, and fyaudulently obtained, it is declared 
»* of no binding force or efFedl on this ftate, or the people there- 
** of." We do not apprehend, that the framcrs of this bill, 
could have ferioufly intended j that/rjW, if it exlfted or was 
pradlifed in this tranfa(5lion, could have the cffeA of annulling 
the law J or that a court, having jurifdidtion of the queftion, 
would ever relieve upon the ground*, that the law was fraudu- 
lently procured.* Fraud cati only be applied to contrails, 
where there are two parties, but cannot attach to laws where there 



L 49 1 

but one i it would be abfurd therefore to allcdgc fraud in pafllng 

the afl, where but one body being concerned could only be im- 

pofcdon hy itfclf. But although this is fo great a folccifm -, 

yet from the report of the committee to whom were referred, 

the petitions and remonftrances, dircfted to the convention, and 

before whom the affidavits, touching the fraud, were taken, it 

appears they intended to give the charge of fraud this oftenfiblc 

diredion. The following is an cxtracfl of the report : *' the 

** Committee lament, that they are compelled to declare, 

'* that, the /rj«rJ, corruption^ and collufiofiy by which the faid 

" rtJ/, was obtained and the unconftitutionality of the fame, 

** evinces, the utmoft depravity In the majority of the late legif- 

*' lature. It appears to your committee that public good was 

** placed entirely out of view and private intereft, alone, con- 

** fultcd, that the rights of the '^xt{Qw\. generation were violated, 

" and the rights ofpoftorify bartered by the faid a(5l ; that by 

** it the mounds of equal rights were broken down, and the 

" principles of ariftocracy eftablifhed in their ftead. The com- 

*' mittce whilft t'aey thus with fhame and confufion acknow- 

** ledge that fuch a legidature, intruded with the rights of 

" their conftituents, fhould have exifted in Georgia, cannot 

" however forbear to congratulate the prefent leglflature and 

** community at large, that there are fufficient grounds, as well 

** with refpe(5l to the unconftitutionality of the aSl^ as from the 

" teftimony before the committee, of the/r^tfipravflifed toob- 

" tain it, to pronounce that the fame is a nullity of itfelf, and 

** not binding or obligatory on the people of this ftate, and they 

*' flatter themfelves, that a declaration to that purport, by a le- 

'* giflative a«it, will check the rapacious and avorlcious fpin't 

*' of fpeculation, which has in this ftate, over leaped all decent 

" boimds, and which if it were to continue, would totally anni- 

G 



[ 50 ) 

'* hllate morality and good faith, Trom among the citizens 
" of the ftatc.** " The committee for this purpofc beg leave 
** to report, ** an adl for declaring the faid ufurpcd <»<7 void,and for 
" expunging the f\me from the face of the public records ; and 
" thcyalfo hcrcvvltli report in part, tcrtimony before them (xC- 
•* teen affiiavits, taken on the fubje*5l of the fraud pra(5lifed to 
" obtain it.'* 

The fraud thus attempted to be proved by exparti afH- 
davlts taken before a committee, upon their own mere motion, 
and fo emphatically charged againft a majority ofthe late leg i Ma- 
ture \n obtaining the a^^ — is declared, in this report, to be the 
ground on which they pronounce that ac^ to be a nullity in it- 
felf and not binding or obligatory on the people of the (late. 
The fraud here chargxl, is againft the majority of the legiflaturc, 
in obtaining the acl i a majority of that body under the confti- 
tution had a right to pafs all la vs which they deemed for the 
good of the ftate •, there could be no fraud therefore in exercif- 
ing a conftitutional right. But the idea of fraud, fuppofes a 
furpreflion of truth — or fuggeftion of falfchood by one party, 
through which another is deceived and impofed on \ the leglfla- 
ture beinq then the reprefentativeofthe ftate, was the only par- 
ty concerned in obtaining or rather making the art in queftion ; 
no truth furpreffcd or falfehood fuggefted by this body, could 
poRibly operate as a deceit upon themfclves. There is a levi- 
ty and thinnefs in the pofition which evades the grafpof invefti- 
gation i and renders it invifible at the approach of rcafon ! 

But as the extent of the fraud charged \ was to impugn 
their predeceflbrs and invalidate the art pafTed by them, and 
the teftimony thus taken direrted to this point •, we fhall at- 
tempt to apply the proceeding to the teft of principles and that 



C 51 1 

conftitution by which they profefled to be (o ftriiflly governed. 
Firftthen, in the nameof juftlcc» What part of the conftitu- 
tion, under which they were aflembled either exprefsly or tacit- 
ly, aiithorifcd this committee, to enquire into the conduJ^ of 
the preceding legiflature ? Whence did they derive inquifito- 
rial powers to fuchan unprecedented extent ? The conftitution 
indeed had provided the method of impeaching perfons who 
then were or had been in office, and made each houfe a judge 
of the cortdu(5t of itsown members when in feflion, fo far as to 
fubjed them to tlie ^^/^^wjandaeconomy of the political body. 
But from this dv^Iegation there could be no poHible dedu(5lion to 
warrant one body of natural perfons reprefenting the political a- 
gency of the ftate, and having but one m/l in fuch capacity, up- 
on the ground of ex parte teftimony againft individuals belong- 
ing to that body, on a former occafion, to difannul and render 
void, an aft pafled by the corporate will of the fame agency. 

Unfortunate would be that country whofe fundamen- 
tal compaft, would warrant fuch a procedure ! ! 

In fuch a government the members of the legiflature for 
the time being, would be ahfolute defpots, and have in their 
hands, the lives, liberty and property of their fellow-citizens. — > 
It is not only neceflary to the health of a country, to have rights 
and wrongs, defined by exifting laws j but alfo to keep diftinc^l 
and feperate the judicial and legiflative powers. ** The force, 
'* validity or meaning of a legiflative adt, fays Harper, is pure- 
** \y a judicial queftion, and altogether beyond the province of 
" the legiflature. It is the province of the legiflative aut^hority 
** to make laws, to give them their exiftencc i but to expound 
** and enforce them belongs to the judiciary. The judicial pow- 
** er is to declare what the law is ; the legiflative what it Jbdt'i 



[ 5i ] 

" be. The leglflaturc therefore may repeal one of its own a(5ls ; 
*' that is, may declare, that it fhall not hereafter be law ; but 
*' (hould it go further and declare, it to be void, that it is not 
** now law, it ftcps beyond its powers, and its proceedings bc- 
** come null." Site Georgia faUs confidcred. 

It a fuccecding legiflature could nullify and declare void 
from the beginning a law, under which during its exiftence, a 
citizen hail obtained redrcfs for an injury, or fecured his proper- 
ty! tbat body would be in the unlimited pofleflion of all his 
rights— could defeat the judicial remedy lie had obtained, and 
difpofe of the property h« had fecured. In fuch a ftate of 
things, the judicial authority would be aboliflied, the records 
of courts no longer the memorials of jufticc \ but every depart- 
ment and the whole afFairs of fociety, would be fwallowed up 
in the capacious vortex of legiflative inquifition* 

It is ftrange and unaccountable that thofe gentlemen who 
had with fo much zeal defended the fovereignty of the people, 
and argued with fo much ftrength agaiuft the aflumption or 
ufurpation of coMftrai5llve powers, in a part of the preamble of 
this bill i fhould (o fuddenly have departed from their own dec- 
larations, and derogated fo much from the rights they profefled 
to defend. Surely they could not havQ. calculated upon the 
mifchicvous confequences of fuch a precedent, or the political 
dangers refulting from fuch dot5lrines. For the fame power 
'which they afllimed in this meafurc, would have authorifcd them 
to abrogate, difannul and render void from the beginning, the 
whole fyftem of ftate jurifprudence, and to have left the lives, 
liberties and properties of the people, to be fcramblcd for in 
univerfal anarchy and confufion. 



[ 53 1 

This would be placing a dagger in the hand of each fuc- 
ceeding legiflaturc to cut the throat of fociety and leave it to 
expire by an aft of political fuicide. But the conftitution of 
the rtate, the principles of our national compad and the ftrength 
and independency of the federal judiciary, will defeat the effcdls 
of the precedent and prefervc us from fuch a cataftrophy. 

Laws however impolitic, however oppreflive in their ope- 
rations and whatever /r^«i may be alledged in obtaining th?m, 
being the higheft evidence of the fovercign will— are fo long 
as they remain unrepealed, the guides of the judicial authority, 
the rules of civil condu6l,and the meafures right, and wrong. — 
And it is better to fuffcr the temporary evil of fuch laws, than 
that the power contended for, Ihould be called into exiftance up- 
on any occafion whatever. 

The affidavits then, taken before this committee, if they 
had verrifisd fafts of the higheft turpitude againft the members 
of the preceding leglfl.iture, could anfwer no purpofe in affeft- 
ing the afl paflid by them, or in furniftving the perfons before 
whom they were taken with additional authority. The affida- 
vits are direfted to the proof of fraud and corruption in the 
members •, admitting the abfurdlty for a moment, that a man 
could commit a fraud upon himfelf, yet as this fraud muft have 
been an exercife of individual zviU and not the will of the iegif. 
latui'c, as a corporate perfon and moral agency, it could have no 
rational relation to any aft of this moral perfon, more than the 
aft of one individual could be charged to another. The only 
cfFeft therefore which thefe affidavits could produce, was to ar- 
raign the conduft of perfons afting under the conftitution and 
the legal fo!emnity of an oath j perfons cloathed with as much 
authority as themfelves ; without a hearing, extrajudicially and 




4^ 



[ 54 ] 

imconflltutionally. For as the fads charged could, if true, only 
render tlicm crimiiial in their natural and individual capacities— 
they are prcfumed to be innocei\t by the humanity of the law, 
until found guilty by a jury of their country. 

As it is then, impoflibie that a charge of fraud, can under 
nny circumflanccs extend to nullify a law — let us next examine 
the extent of this charge upon an application of it to the con- 
tra(5l made under the law in q leftion. The rcfcinding bill as 
has been obl'rved, profefTcs to refcind the contra(5b made under 
the law, as well as the law, itfelf — after pronouncing fcntence 
upon the law feperately j it proceeds j " but is and are to be con- 
fiJered both Lizv and grnnt^ as they ought to be, ipjofa^o 
void, &c.** Firft, the aft is attempted to be mnmlUdy rendered 
voidf and of no effeft ; and fecondly, the contraft is coupled 
with the aft and both deftined to oblivion together. 

Having already fufficiently (hewn, that this bill, derived 
no authority, even in argument, from the conftitutional 
grounds, its advocates relied upon, that fraud cannot, in ti.e 
nature of things, vitiate a law j the whole force of this latter 
charge, now remains to be applied to the grant or contraft itfelf. 

A dirtindllon is taken in the law books, between things void 
and fuch as are only voidable \ which diftindion would be of 
life on this occafion, if the queftion could be judicially determin- 
ed. ** A thing is void, which was done againft law, at the 
very time of doing it, and no perfon is bound by fuch an adl ; 
but a thing is only voidable which is done by a perfon who 
ought not to have done it, but who neverthelefs cannot avoid 
it himfelf^ after it is done"* This grant then cannot be pre- 

• 5 B.1C. 333. 



C 55 ] 

tchded to have been made agalnft law j the law Itfelf being m 
force when the contraft was executed ; (6 that it is not one 
of thofe cafes which could be confidercd ipfo fa^o void, what- 
ever circumftances of fraud might have attended the trnnfai'^Ion. 
The moft therefore that could be faid by a judicial tribunal in 
a cafe where fraud was duly eftablifhed, would be, that the party 
upon whom the fraud was pradlifed, fhould be at liberty to 
avoid thecontrad. 

But when we examine the affidavits themfelvcs, alrho* 
taken under circumftances fo unfavorable to the parties charg- 
ed, we find no fae^ verrified, that implies any fraud in either 
of the parties, in forming or executing the contracft in quef- 
tion.* The executive officer of the ftate, who aded as the a- 
gent or organ of the ftate agency, tlirough which, the will of 
this moral perfonage, was carried into aiflion, executed and 
performed one part of the contrail in ftrit^ conformity to the 
law under which it was made •, and on the part of the purchaf- 
crs, the conditions ftipulated, were literally and bona' fiJe 
performed. No furprcllion of truth or fuggeftion of falfchood, no 
falfc coloring, impofition or furprize is attempted tb be proved 
againft either of the parties, in the origin progrefs or conclufion 
of this contratfl. All the afperfions thereibre againft the perfons 
concerned in this tranfa(5lion, muft have originated in fpleen and 
ill nature, as we find no ground for them even in the extraju- 
dicial inquiry into their conduct. Indeed, as the fraud charged is 
placed to the account of a majority of the legiflaturein obtaining 
the law i the purchasers are thereby fecured from imputation •, 
and as the law cannot be avoided by one of the parties, upon the 
ground of its own turpitude, even if a law could be avoided, or 
that turpitude,conftitutionally enquired into: the purchafersftand 

* Appendix, No. 1 5. 



t 56 1 

fairly exhotiorateS and fccurc in their purchafc by the invefti- 
gation, intended for their difhonor and a diflblution of the con- 
tradl. The charge of fraud then, in relation to the contrajfl, 
to which alone fuch a charge would be admitted to relate, is 
without proof or foundation of the flighted kinds. Thus 
far we have proceeded, on the fccond q'leftion propofcd, in com- 
plalfancc to the framersof the refcinding bill •, and combatted 
the grounds tliey have taken upon the aflumcd prcfumption, 
that the legiflature, quo ad hoc had judicial powers, and was 
not a party in the littigation. In the courfc of the argument, 
we have attempted to reafon fairly, and to deduce fuch conclu- 
fions, as in our opinion neced'arily refult from the plain princi- 
ples of law and equity, and the letter of the conftltution, as ap- 
plied to the hiftory of the cafe before us. And we do not deem 
it arrogant to prcfumc, that if the qucftion were to be agitated 
before a court having competent jurifdidion •» tlie following 
conclufions which arife from a real ftate of the cafe, would not 
be rcjeded. Firft — that the refcinding legiflature had no fur- 
ther or more extcnfivc power, than the preceding one, and could 
not therefore nullify their ads or render them void, much left 
deftroy the force of contrads made under them. Secondly — 
that the a»5l of 1795, or the felling ajf^, was not repugnant to 
any part of the conflitution, but in ftrid conformity to the fenfe 
of the nation, and the antecedent a»5ls of the government 
on the fame fubje(5l. Thirdly — that the refcinding legiflature, 
although perhaps compofed of different natural perfons, confti- 
tuted neverthelefs the fame body politic or moral agent, who had 
made the contraifls ; fubje(5l to the fame obligation refpcifling 
it, and ftanding to all legal intents in the fame relation to the 
purchaicrs ; that therefore it is not competent for them to al- 
ledge their own turpitude or difability to avoid the contradl. 



[ 57 1 

This conclufion is founded upon maxims eftabli/Tied by tliewif- 
domofages. Firft — that every man's grant fhall be taken 
mod ftrongly ag.iinft himfclf. " This rule, (fays lord Verulam) 
** that a mans deeds and his words fhall be taken ftrcnglieft a- 
" gainft himfelf, though it be one of the nioft common 
" grounds of the. law, it is notwithftandlng drawn out of the 
" depth of reafon ; for firft it is a fchoolmafter of wifdom and 
" diligence, in making men watchful in their biifinefs; next it 
" is author of much quiet and certainty, and that in two forts : 
** firft becaufe it favourcth the ads and conveyances executed, 
«* taking them ftill beneficially, for the grantees and pofTtflbrs i 
** and fecondly, becaufe it makes an end of many queftions and 
** doubts about conftruelion of words -, for if the labour were 
*' only to pick out the intention of the parties, every judge 
** would have a feveral fenfe j wbereas this rule doth give them 
«' a fway, to take the hiw more certainly one way." From this 
maxim and the obfervations of this learned author, no man or 
moral agent after having folemnly executed a grant, can avoid 
it by alledginghisown turpitude or difability, but the words of 
his grant (hall be taken as the highcft evidence of his aflcnt and 
interpreted moft ftrongly againft him. And this conclufion 
is further fupported by two other maxims equally well found- 
ed : That no man (hall take advantage of his own wrong, or 
be a judge in his own caufe.— Thirdly, that the refcinding bill, 
is in its nature unconftitutlonal and void : Becaufe the legifla- 
ture having no other than the power of repealing laws, have 
in this proceeding ufurped the judicial authority of the ftate, 
which is an exclufive delegation of power, and cannot be exer- 
cifed in a legiflative capacity. And fourthly, that the contra(5fc 
being executed, and completely confummated between the par- 
ties, no aft of the Icgiflature thereafter, even if the ftate confti- 

H 



t 58 1 

futioii had furniflicd thcin with authority, could impair its ob- 
Ugations, without an infia»5Hon of the United States conftitu- 
tion, which being the fuprcme law of the land is paramount to 
all other laws. 

We do not therefore hcfitatc, to pronounce our opinion, 
that the refcinding bill, is not of force to affc<5l the validity of 
the contra(ft, and that it has not thereby been diflblvcd or ref- 
cinded. 

Tins bill being generated in the fcafon of pafllon, feeble 
in its frame and fickly in its afpc(5l, cannot outlive the authors 
of its cxiftcnce j the feeds of death were incorporated in its or- 
ganization, and its grave like phyfiognomy prognofticates its fate. 

We (hall now leave this bill to its dcftiny, and proceed to 
enquire whether this contrad has been affcded by any other 
ad of the parties. In this enquiry, a declaration of the late 
convention, prcfcnts itfelf for difquifition. The convention of 
1795, having paflcd over this fubjecl, and a fublcqucnt con- 
vention having n\et in purfiiance of their appoiiitment, in 1798, 
for the piupofe of " revifing and amending the conftitution •,** 
the fubje(5l of this contrad was taken up by them, and their 
Opinion thereon, incorporated in the prefent conflitution of the 
ftate. 

This being an a*5l of fo much folemnity, coming from the 
fource of ftatc fovercignty •, we fhall treat it with deference and 
rcfpe6l, while we inveftigate its principles, and the force of its 
authority. 

The conftltutlon is the vital principle as well as the or- 
ganii:ation of the government — in it, feriginate the different de- 



partments offtatc, from it, they derive their energy, and hy it, 
their powers arc dirtinguifhcd and defined. — It is the firft mover 
and impelling caiife of the governmental machine, and when fet 
in motion prekribes limits and dircdion to the parts of vvhicli 
It is compofed. But in this as in the laws of meclianifm : Prin- 
ciples cannot operate liefore they arc applied, nor can the cflltfi 
rcfiilt, until the caiifc is originated. 

The conrtitutlon therefore when formed can only operate 
from its formation •, and its tendencies muft take their direc- 
tion from the date of its adoption. We think it therefore not 
rarti or prefumptuous to conclude : That notwitJiftanding the 
omnipotent povver of a convention, they are governed by thofe 
principles which are imprefTcd upon the moral world, and had 
tiieir cxiftence before the formation of any pofitivc precept •, 
thit therefore all the rules they prefcribe, and declarations made 
by them, can only be obligatory on the citizen and his rights 
as a moral agent, in relation to his fubfequent condujfl -, and 
cannot efFe(fl a diflblution of prior obligations, or divert him of 
rights which he had legally acquired. The relation between 
the governor and the governed, the fovereign and the fubjecV, 
exifts in all its force between a convention and the people ; and 
their reciprocal duties and obligations are the Hmie. 

With thefe preliminary remarks, we fliall take up the 
declarations of the late convention, which relate to the fubjed 
under confideration. 

The 2 1 ft fedionofthe firft article,* after declaring the 
limits of the ftate, goes on further to aflertand declare, that all 
the territory without the prefcnt temporary line and within the 

• Appendix, No. i6. 



[ 60 J 

limits aforeraidisnowofright the property of the free citizcus 
of this ftate» held by them in y(?i;^r«]j«/V, inalienable, but by 
their confent i with a provifo however* that the legiflature might 
difpofe of a part of the territory to congrcfs. 

If this claufe had ftood alone, no difficulty would thereby 
have prefented itfclf. Becaufe the fovcreignty of the people 
hereby intended to be fecured to them, was never the fubje<5k of 
alienation, or attemptci to be difpofed of. But the i+th fec- 
tion of the fame article, difcovers that this body intended fomc- 
thing more. I'his fc(flion is in the following remarkable words. 
*' The foregoing fcrtion of this article having declared the com- 
** mon rights of the free citizens of this ftatc, in and to all the 
" territory without the prefent temporary line, and within the 
" limits of this ftate, thereby defined, by which the contempla- 
" ted purchafes of certain companies of a confulerable portion 
"thereof, are become conftitutionally voiJi and juftice and 
*' good faith require, that the ftate fhould not detain a confide- 
" ration for a contrail which has failed, the legiflature at their 
** next feflion, (hall make provifion by law, for returning to 
** any perfon or perfons, who has or have bona fide depofited 
*' monies for fuch purchafes in the treafury of this ftate : Pro- 
** vided, that the fame ftiall not have been drawn tlierefrom, in 
** terms of the a(5l pafled the thirteenth day of February, one 
•* thoufand (twtn iiundred ana ninety-fix, commonly called the 
** refcinding a(5l,or the appropriation law of the year one thoufand 
** feven hundred and ninety-fix and feven : Nor ftiall the monies 
** paid for fuch purchafes, ever be deemed a part of the funds 
♦* of this ftate or be liable to appropriation as fuch ; but until 
«* fuch monies ftiall be drawn from the treafury, they ftiall be con- 
<* fidered altogether at the rifle of the perfons who ITave depofited 
** the fame," &c. By this laft claufe two thirgs arc evidently 



[ 6i ] 

imported, which by the foregoing fedion could not be deduced : 
Firft, that the lands fold to the purchafers, are hereby Intendeii 
to be re-vefted in the (late, and fccondly, that the contract made 
with them, is by this intended to be difannullcd. Firfk then, 
wc take the liberty of obferving, that this convention paid no 
regard to the refcindingbill, hut feem to have confidered it as of 
no confequence or validity. This we infer from the words a- 
bove recited : *' That the contemplated piirch;ifcs of certain 
•* companies, are become conjiitutiotuilly void." Not by the 
nullifying adl, but by the declaration of this convention ! Merc 
then is a folemn aft of the people thcmfelves confirming the 
legality and conftitutionality of the fale. For although this 
auguft body haddetermined to abrogate and nullify t'ne contra^fl •, 
yet by the means they adopted for this purpofc, th'^y have de- 
clared to the world, it was in full force until then. The trutli 
of this aflcrtion is proved beyond contradidion, by the vvord.s 
which follow J " And juftice and good faith require, that the 
** ftate fhould not detain a confideration for a contra^5l vv hich ha.s 
failed," 6:c. By thefe words the contrail between the llate ar.d 
purchafers is recognized, a bona fide confideration acknowledg- 
ed to have been received, and partially appropriated •, that the 
contradl has failed by aft of this convention, and that juftice re- 
quires that the money fhould be refunded. 

If there exifted before any doubts, about the conftitu- 
tionality of the aft of 1 795, the legality and fairnefs of the con- 
traft made under it j they are all removed by this mod folenui 
aft of the ftate fovereignty. The convention it is true have 
declared that the contract has failed, but the reafon of its failure 
is alledged to be their own aft in rendering it unconftitutional. 
From whence refults the implication, that until then, the aft 
fiud contraft under it, was conftitutional and in full force. And 



fo far from its being avoided on the ground o^ fraud m the pur- 
chafers, or failure on their part : The confuicration is acknow- 
ledged to have been received by offering to reimburfe it, and the 
fairnefs of the tranfa<flion admitted, by calling the depofits 
hona-fJe. 

Bv this adi of the people in convention, then, the impu- 
tation of fraud is removed ; the conftitutionality of the a(5l of 
1795, admitted — the confummatlon of the contraft under it 
confirmed -, that it was made by perfons able and willing to con- 
trac*l ; and finally that tl:c fiibjci^ contratlcd for was in its na- 
ture alienable, and was therefore vefl:cd In the purchafcrs. But 
notwithftanding all this, they profcfled to occupy fufficient pow- 
ers to diffolve this folemn contrail, and divert the companies, 
of the property they had thus legally and bona fide acquired. 

The whole fuhjecfl then nuy be involved in this impor- 
tant queilion : Could the convention of 1798, diffolve a con- 
trail made and confummated in 1795, and diveft the party of 
the property thereby acquired ? There can remain no doubt, 
but that a convention have very extenfive powers over the com- 
munity from which they receive their delegation ; but thcfc 
powers are not unlimitted. There are certain rules refulting 
from the nature and moral aptitude of human affairs, by which 
defpotifm itfelf profeffes to be governed, and from which in a 
republic no body of men adling in a public capacity, can con- 
fidently depart. One of thofe rules which has its foundation 
in natural equity, is, that in the formation of government, each 
man rclinquifhes an equal portion of his rights to be moulded 
into general regulations •, and that no individual ffiall furnifli 
more than an equatable portion of his property, for the general 
ufe. If this rule then prevails at the origin of a government, 
it ought to be preferved inviolate, when focicty is organized. 



1 f^S ] 

AlTho' it has been allcdgcd that while in convention the 
government was in a ftatc of revolution, and the bonds of focic- 
ty loofed : — The truth of the cafe docs appear to us, to au- 
thorife fuch a conchifion. The meeting of the convention was 
prefcribed, and the members clc(5led by a(5l of the government, 
it was therefore a continuation not a diflblution of fociety. If 
that had been the cafe, wlicre rcftcd the authority of thefe mem- 
bers, to bind tlic whole community. But even admitting the 
old government to have expired, and been ituirned in the filent 
tomb of obhvion •, and that the members of this convention, 
had by force or ftratagem obtained an unlimited controul over 
the lives, liberty and property of the whole community, could 
they then havejnllly deprivcvl any man or particular fetof men 
of their property without their confents, for the benefit of the 
whole ? The eternal principles of juftice forbid it ! The Unit- 
ed States, who had pledged themfelves to fecure to each of the 
dates a republican form of government, were and are bound to 
foibid and prevent it. Tor if the laws or conftitution of any 
particular ftate, were to enforce axioms derogatory to a go- 
vernment of equal rights, and opprefs a fingle citizen and feclude 
him from the common rights of a republican, without a crime : 
The federal arm is pledged to redrefs his wrongs and remove the 
caufe ! There are energies in the general government which 
have not been called into adion j but they are ready in the arfe- 
nal of liberty, whenever her rights fhall be invaded I 

But as the rights of the citizens under the late conftitution, 
were not diverted by the meeting of this body, whofe authority 
only extended to " revife and amend," not to fubvert the fun- 
damental law i nothing can be more clear, than, that any part 
of the amendments which operate in a diflFerent direction, are 
inconfiftant with the powers delegated to them and not binding 



t ^4 ] 

111 juftice or confcicncc. The political agency or body politic, 
\vhich had made the contrad, did not ruffcr death by the mea- 
Aire, but continued to exirt, as the form of government could 
not be changed. It continued therefore as a moral agent fub- 
jc(5lco the fame rules of juftice and equity as before and fubjedl to 
the fame obligation in rcfpcv5t to its contradls. — Thus much on 
general principles :— Now permit us to examine this proceed- 
ing, as applied to the national compa^t^ which is the fupreme law 
of the land. The latter claufe of the loth fecflion of the firft 
article of the conltitution of tlie LInited States, declares that, 
** no ftate, fliall pafs any bill oi a[ta\nd.:ry ex pojl fn^o law, 
" or law impairlnc; the obligation of contrads, Sec.** 
In the national dillribution of rights, the limits of the ftatc 

governments were prefcribed. The convention of the 

United States, being the original fourcc of authority— 
reprc Tenting the fovcreignty of the people of the whole 
nation ; delegated on that occafion, to each of the ftates of 
which the nation was compofed, fuch a portion of indepen- 
dent authority, as was deemed requifite for the purpofes of do- 
mcllic or ftate government. As however a fyilem of general 
government, was organized at the fame time, over the whole 
union, it was abfolutely nccefHiry to define the limits of the ftatc 
authorities, to prevent interference and difcordancc in the ope- 
rations of the great and lefTer fyftems. The national compaft 
or conftitution therefore was eftablifhed, as the permanent 
code of fundamental laws, prefcribing rules and limits to the flats 
governments emanating from it j and di(*lating the general prin- 
ciples upon which they were to operate. 

All the a(5ls therefore of the ftate foverelgnties thus carved 
out and limited, whether conventional or legiflative muft per- 
fue and be confiftent with the rules defined in this fundamental 



[ ^5 ] 

u\v J and all their afls which deviate from thcfe rulesr, not be- 
ing the legitimate offspring of this " effential fource" of au- 
thority, ceafe to be obligatory. And in order to prevent con- 
(IruAive encroachments of the ftatc authorities, the wifdoni 
of that convention, inferted an explicit prohibition in the na- 
tional compadl. In the 6th article it is written : ** This con- 
" ftitution and the laws of the United States, wliich fhall 
** be made in purfuance thereof, and all treaties made, or which 
" (hall be made under the authority of the United States, (hall be 
" the fupreme law of the land, and the judges in every ftate (hall 
** be bound thereby, any thing in the conftitution or laws of any 
** ftatc, to the contrary notwithl^anding." Here is a perma- 
nent guide for the judicial department, in each of the ftates, 
whofe cxclufive province it is to expound the laws •, and under 
the diredion of this guide, they are conf^rained, to hold all (^ate 
laws and conftitutions without obligation, which do not gradu 
ate with its didates. 

The idea therefore that a ftate convention is not bound 
by the national compacfl, is extremely fallacious. For even ad- 
mitting tfcat the meeting of fuch a body, was a diflblution of 
the governmental organization of the ftate, yet without a dif- 
mcmbcrment or feparation from the union, the conftitution 
made by them muft be coincident with the national compaA -, 
and the officers adminiftering the ftate governments, having fo- 
lemnly fworn to fupport the conftitution of the United States, 
are bound to difregard as a nullity, any a(5l of the ftate fove- 
fC'gnty, whether purporting to be conftitution or law, not con- 
fiftent therewith. But as the convention in queftion, were or- 
ganifed and authorifed by the then conftitution of the ftate •, the 
refult of their deliberations, muft be regarded, with reference to 
the principles of the government, and the equal rights of the 



L 66 ] 

citizens under cxilling laws as well as being fubordinate to the 
national condltutten. if then this conditution is the fupremc 
law or the land, no ad of any ftate to the contrary, is of force, 
fo long as. that Ihtc continues to be a member of the union. If 
this conftitution therefore, has declared, that no ft ate (hall 
pafs an ^.v poji fa^o law, or imp.iir the obligation of a contrail, 
any ilate law wheffier conventional or iegiflative, having that 
tendency, is ipfo fatlo null and void. That the part of the 
proceedings of the late convention, which relates to the contTa<5l 
under confidcration, is, ex paji fa^o^ and has for its obje^, the 
diflolution of the obligatory force of a contraft : will, not be de- 
nied. The language they have ufcd and their exprefs fenfe of 
the fiibjev^l> being, as has been fticwn -, that it was a contraA 
executed atid in full force •, but that it was thereby nullified and 
its obligation dcfrroyed. It requires therefore no circumlocu- 
tion to exprefs : that this at^lol the ftate fovereignty not being 
confirtant with the tcpmsof it.s delegation, was an excrcife of 
nfiumcd and ufurped power, in derogation of the principles of 
the national compa(!l, and therefore not of force to diveft the 
title of the purchafers, or to refcind the tontradl in qucftion. 

Bu r it is aHced \ to whom can thofe perfons apply for re- 
drcfs ? We anfwcr tothejuftice of the United Stales! That 
ftands pledged for a redrefs of their wrongs j and no doubt 
when a proper application is made, it will be promptly and ef- 
fcdually extended. 

To fay that thefe people are without remedy and that, 
the conftitu'Jon in cafes of this kind cannot be enforced : 
would be afcribing an imbicility to the national government, 
unworthy its dignity, and tix a ftigma upon the framcrs of that 
conftitution, unworthy their wifdom and juftice. 



[ C; ] 

If this w«re admitted, the purchafcrs of this territory woulil 
not be the only fufferers. Thofe hydy and honcll veterans, 
who were paid in the fame fpecies of property, for tlicir toih 
and dangers in defence of the (late, would loofe thtir compenfa- 
tion. For by the fanK aft of the convention, by which the 
purchafcrs are faid to be oufted of their property, the cl:iims of 
thefc troops are alfo defeated •, the ftate having thereby declared 
that all the territory beyond the prefent temporary line is ftill in 
the citizens, and fliall not he alienated. 

Having thus furnidied our reafons for believing that the 
contraft in qucftion has not been difTolved or refcinded by any 
ad of the ftate i it now remains to fhew under this head, that 
it has not been afFe^flcd by any aft of the purclufcrs. 

We do not deny but that the companies by meeting the 
propofitions of the ftate, in receiving the confideratlon money, 
and relinquifhing their grant would thereby reveft the ftate in 
the title they obtained -, for this would be a new contraft. 

The aft for carrying into effeft the 24th feftion of the 
firft article of the prefent conftitution of the ftate ; provides 
that any grantee or grantees or his or their agent or agents fhail 
be entitled to the money depofited, on account of the contraft 
in queftfon, on certain conditions. It is contended however 
with great difference to the legiflature, that a performance of 
thefe conditions, by an individual belonging to any of the cor^v 
panics, and the confequent receipt of the depofit money, cannot 
enure to diveft the companies title, or in anywife invalidate the 
contraft. The companies it is obfervable, in the grants and 
the law under which the grants were made, are treated with, as 
bodies corporate under the ftile they afTumcd, no aft therefore 
of an individual belonging to cither of thcfe bodies, can bind 



t 68 ] 

the reft without their confent. This being the cafe, it is re^ 
laarkable, that although the conHdirttion or depofit money is 
declared not to be a part of the funds of the ftate ; yet by this 
aft it is appropriated to the ufe of fuch individuals as will com- 
ply with conditions, which procure no benefit to the ftate.— 
There is fomcthing fo ftrange and impolitic in this part of the 
condu(5t of the ftate, that it cannot be readily accounted for.-» 
The convention declared and acknowledged the receipt of this 
money as i confidcration of tJie contracft, and avowed an adtual 
appropiiation of a part of it, to the ufe of the government.— 
The Icgiflature by this a(5l have cxercifcd ownerftiip over it, in 
dircding its application; and yet declare it, not to be their 
own ! If then it is given to individuals applying for it, under 
thefecircumftanccs upon conditions which do not fecure a re. 
linquift^nicnt of the intereft in the territory once veftcd in the 
companies, it can fumifti the ftate with no pretence that the 
contra<5l is thereby re(cinded •, or ground of equity to be reim- 
burfed for this ftrange expenditure. But to give the moftla- 
titudinary conftrudlon, to the cafe, which can pofllbly be con- 
tended for in equity ; the ftate could on^r derive a title to the 
iiUereft held by fuch individuals as recefve the money under 
this a<5t. But equity in fuch cafe would guard the intereft of third 
perfons, with a watchful eye I Suppofe application was made 
for the money, by a perfon who had transferred his title pre- 
vious to fuch application j his receipt could not diveft the per- 
fon to whom he had transferred his intereft of the title he theroi. 
by acquired. And if the money was paid to fuch applicant 
with a knowledge of the transfer, the ftate would be remedi- 
lefs, even againft the perfon receiving the money, as he would 
thereby bccom^^a party to the fraud. 



♦. 



t «9 ] 

With thefe obfervations then weiconclude, that unlefs 
the companies, to whom the lands were granted, have taken 
the conHJeration money in their corporate capacity ani made 
a furrcnder of their grants, that the contrad has not been refcind- 
ed by them or rendered ineffedual by a fecond compact. Afllim- 
ing it therefore as a faft that they have not done fo, we give it 
as our decided opinion that the contracfl for Weftern Territory 
has not fince its confummation been difTolved or refcinded. 

From the whole of the foregoing remarks and authorities, 
we are led to thefollovvingconclufions : Firft, that the contra^ 
for the fale of Weftern Lands in 1795, was made by compe- 
tant parties, and under circumftances which rendered it /alid in 
law and obligatory upon them, and fecondly, that the contraft 
has not fince been impaired by the aft of either of the parties, 
but remains of force, to fecure in the holders the intereft pur- 
chafed by them. 

JOHN E. ANDERSON, 

W 1 L L I A M J. H O B B Y. 

Considered at Augusta,") 
August, 1799. j 



^ 



'^ 



^(s 



APPENDIX. 



S the documents contained in the appendix an- 
hexed to the manufcript copy, ftre voluminous, and as moft of 
them are already in the hards of the public •, the Editors deem 
It unneceflary to fwcll this publication, by inferting the whole of 
them at large. They will therefore content themfclves, with 
Hmpiy adding a note to the feveral numbers, of thofe which 
they prefume to be in general circulation, to defignate the do- 
cument intended, and fuch as have not received publication or 
■re not eafily acquired, will be fpread at large in this Appendix. 

Number i. 
Seb Treaty of New-York, with Indian Tribes. 

Number s. 

Constitution of United States, and Intercourfc Law. 

NltMBBit 3. 
Several Public Treaties made with Indian Tribe« for 
the extinguiihment of their Claim. 

A 



C 74 ] 
Number 4. 

y/v ACT Jupplemcntary to an A5l^ entitled^ " an AEl for appro- 
priating a part of the mlocated Territory of this State for the 
payment of the late State Troops y and for other purpofcs there- 
in mentioned^ declaring the right of this State to the unapprO' 
priated Territory thereof y for the prote^ioH and fupport 0/ the 
Frontiers of this State^ and for other purpofcs. 

WHEREAS in and by the articles of confederation en- 
tered into, and finally ratified on the firft day of March, one 
thoufand Teven hundred and eighty-one, by the then Thirteen 
Uniteil States of America, the territory within the limits of 
each of the faid ftates is to each of them rcfpedively confirmed 
and guaranteed, firft, by the fecond article, to wit : ** Each 
ftatc retains its fovereignty, freedom and independence, and 
every power jurifdiiflion and right, which is not by the confede- 
ration exprefsly delegated to the United States in Congrefs af- 
fembled ; and fecondly, by the laft claufe in the fecond fecflion 
of the ninth article ; no ftate fhall be deprived of territory, for 
the benefit of the United States. 

And whereas in and by the definitive treaty of peace, fign- 
ed at Paris on the third day of September, one thoufand feven 
hundred and eighty-three, the boundaries of the United States 
are eftablifhed, and thofe boundaries which limit the weftward 
and fouthweftward parts of this ftate are therein thus defined : 
*^ Along the middle of the river Mlfliflippi, until it fhall inter- 
" fed the northernmoft part of the thirty-firft degree of north 
" latitude, fouth by a line drawn due eaft from the termination 
** of the line !aft mentioned, in the latitude of thirty-one de- 
*' grees north of the equator, to the middle of the river Apa- 
»' lachicoKi or Chatahochec •, thence along the middle thereof to 



[ IS ] 

" itsjun(5Vion with the Flint river; thence ftraight to the head 
• ** of St. Mary's river; and thence down along the middle of 
" St. Mary's river to the Atlantic Ocean :" Which boundaries 
coincide with the fouthwardly and weftwardly boundaries recit- 
ed in the land a<5l now in force paflcd at Savannah on the fc- 
venteenth day of September, one thoufand {astxi hundred and 
eighty-three -, and by the Convention held at Buford, on the 
twenty-eighth day of April, one thoufand feven hundred and 
eighty -feven, between this ftate and the ftate of South- Caroli- 
na i the northern boundary of the ftate is cftabliflicd *' from the 
mouth of the river Savannah, up The faid river to. the conflu- 
ence of Tugalo and Keowcc ; thence up the Tugalo, and from 
the fource thereof a due weft line to the Mifllflippi, including 
iflands." And whereas in and by the firft claufe of the fixth irr- 
ticlc of the Federal Conftitution of the United States of Ame- 
rica, all engagements entered into before the adoption of the 
faid Conftitution ftiall be as valid againft the United States, un- 
der the faid Conftitution as under the confederation, by the 
third claufe of the ninth fe(5lion of the firft article of the faid 
conftitution, no expoft fa6io law ftiall be paflcd, and by the fe- 
cond claufe of the third fcdion of the fourth article, the Con- 
grefs ftiall have power to difpofe of and make all neceffary 
rules and regulations refpecfling the territory or other property 
belonging to the United States, and nothing in this Conftitu- 
tion fliall be fo conftrued as to prejudice any claims of the Unit- 
ed States, or of any particular ftate ; 

And whereas the ceflion made by the ftate of North- Caro- 
lina to the United Stats, by them accepted on the fecond day 
of April, one thoufand kven hundred and ninety, is a full ac- 
knowledgment and recognizal on their part, that the feveral 






-i 



r 7« ] 

ftatci not only hare the right of pre-emption, but are in the full 
cxcrcifc of all territorial right within their rcfpeaive limits.-i- 
jlnd wbtreas notwithftanding the United States did, on the 
twenty-fccond day of July, one thoufand fcven hundred and 
ninety, by an aft to regulate trade and intcrcourfe with the In- 
dian tribes, cnaft and declare, that no fale of lands made by In- 
dians, or any tribe or nation of Indians within the United 
States, (hall be valid to any pcrfon or perfons, or to any ftat*, 
whether having the right of pre-emption to fuch lands or not, 
unlefs the fame (hall be^nadc and duly executed at feme pub- 
Jic treaty, held under the authority of the United Sutes, and 
did on the (cventh day of Augu(l, one thoufand fevcn hundred 
and ninety, by a treaty held at New-York, with certain Creek 
Indians, ftipulated by the fourth article of the faid treaty, that 
th« boundary between the citizens of the United States and the 
Creek nation, it and (hall be * from where the old line (^rikes tho 
Savannah, thence up the (aid river to a place on the moft nor- 
thern braoch of the fame, commonly called the Kcowee, where 
a north- eafl line, to be drawn from the top of Ocunna Mountain, 
ihall iaterfed \ thence along the faid line in a fouthweft diredion 
to the Tugalo river •, thence to the top of the Currahee Moun- 
tain \ thence to the head or the fource of the main fouth branch 
of Oconee river, called the Appalachec river j thence down the 
middle of the main fouth branch and river Oconee to its con- 
fluence with the Oakmulgee, which form the river Alatamaha i 
and thence down the middle of the faid Alatamaha to the old 
line on the faid river i and thence along the faid old line to the 
river St. Mary*s •,' and by the fifth article, * that the United 
States (blemnly guarantee to the Creek Nation, all their lands 
within the limits of the United States to the we(hvard and 
Southward of the boundary dcfcribcd in the preceding article :' 



[ 7r 3 

'And finally whereas th^ ftatc of Georgia afbrcfaid, hath by no 
iiA, or in any manner whatever, transferred, alienated or con- 
veyed her right of foil or pre-emption in any part of the vacant 
territory within the limits of the faid ftate, to the United States, 
the ceflion dated the fifth day of February, one thoufand fcven 
hundred and eighty-eight, offered by the ftate of Georgia to the 
United States, having been by the faid United States in Con. 
grefs affembled, on the fifteenth day of July, one thoufand feir- 
cn hundred and eighty -eight, rejc<5led, in which r^cdlion terri* 
torial rights are declared to reft on the fpirit and meaning of 
the confederation : jlnd whereas the faid propofed ccffion be- 
came void, and on the part of this ftate, is hereby declared to 
be null and void to all intents, purpofes and conftru^lions ; 

Be it therefore enaHed by the Senate and Reprefentatives of 
the Freemen of the State of Georgia^ in General AJjembly niety and 
it is hereby enabled hy the yfnthority of the fame^ Thzt the State 
of Georgia aforefaid is in full pofleffioa and in the full exercifq 
of the jurifdi<5lional and territorial right and the fee-fimple there- 
of; and that the right of pre-emption, to vacant and unappro- 
priated lands lying weft wardly and fouth weft ward ly of the pre- 
fent Indian temporary line, and within the limits of the faid 
ftate, and the fee fimple thereof, together with the right of 
difpofing thereof, is, and are hereby declared to be in the State 
of Geoi^ia only : and for the purpofe of raifing a fund for car- 
rying this ad fully into effe<5t. 

Be it enabled. That all that traft or parcel of land includ- 
ing iflands, fituate, lying and being within the following boun- 
daries, that is to Ay : Beginning on the Mobile bay, where 
the latitude thirty-one degrees north of the equator inter- 
feds the fame, running thence up the faid bay, to the mouth of 



[ 78 1 

lake Tenfaw ; thence up the faid lake Teiifaw to the Alabama 
river, including Currey's and all other iflands therein •, thence 
up the faid river Alabama to the jun«5lion of the Coofa and Oak- 
fulkcc rivers ; thence up the Coofa river, above the Big Shoal, 
to where it interfcds the latitude of thirty-four degrees north of 
the equator •, thence a due weft courfe to the Mifliflippi river ; 
thence down the middle of the faid river to the latitude of thir- 
ty-two degrees, forty minutes •, thence a due eaft courfe to the 
mouth of Tomhigby river •, thence down the middle of the faid 
river to its jun<5lion with the Alabama river \ thence down the 
middleof the faid river to the Mobile bay; thence down the 
faid Mobile bay to the place of beginning, (hall be fold unto 
Janrcs Gunn, Matthew M'Allifter and George Walker, andthe'n- 
aftbciatcs, called the GEORGIA COMPANY, and their heirs 
and afllgns forever in fee-fimple, as tenants in common, and not 
as joint tenants, for the fum of two hundred and fifty thoufand 
dollars, to be paid in fpecic, bank bills of the United States, and 
warrants for the years one thoufand feven hundred and ninety- 
one, one thoufand feven hundred and ninety-two, one thoufand 
feven hundred and ninety-three* one thoufand kvcn hundred 
and ninety- four, and one thoufand (even hundred and ninety- 
five i drawn by the Governor, the Prefident of the Senate, 
and Sj^aker of the Houfeof Reprefentatives, in the following 
manner, that is to fay : Fifty thoufand dollars to be depofited 
in the Treafury previous to the paffing of this ad, and the re- 
maining two hundred thoufand dollars are to be paid on or be- 
fore the fijft day of November next. 

Jnd be it further enabled. That whenever the faid Janies 
Gunn, Matthew M'Allifter and George Walker, and their aflb- 
ciates, or their agent or agents, (hall produce to his Excellency 



[ 79 J 

the Governor a receipt figned by the Treafurer, that they have 
depofited the aforefaid fum of fifty thoufand dollars, according 
to the tenor and effort of this ad, it (hall then be the duty of 
his Excellency the Governor, and he Is hereby required to iflue 
andfign to the faid James Gunn, MattUew M'Allifter and George 
"Walker, and their aflbciates, their heirs and affigns, in fee fim- 
ple as tenants in common, and not as joint tenants, a grant for 
the aforcfaid Ua6t of country, they fecuring the laft payment of 
two Imndred thoufand dollars to the ftate, by a mortgage to his 
Excellency the Governor and his fucceflbrs in office, on the 
whole of the land fo granted, which mortgage /hall be imme- 
diately foreclofed in cafe default fhall he made in the payment of 
the faid fum of two hundred thoufand dollars, on or before the 
firft day of November next, as aforefaid, in the Superior Court 
of any county within the State of Georgia, at the difcretion of his 
Excellency the Governor, any law or ufage, regulating the mode 
of foreclofing mortgages, to the contrary notwithftanding, and 
the whole fum of fifty thoufand dolliirs depofited fhall become 
forfeited to and for the ufe of the Hate *, and the grant to be 
given to the faid James Gunn, Matthew M*Allifler and George 
Walker, and their affociates, to be and the fame in that cafe is 
hereby declared to be null and void. 

And he it further ena^ed^ That the faid Georgia Company 
Ihall referve for and to the ufe of the citizens of Georgia, ex- 
clufively, the quantity of one million of acres of their purchafe, 
in the following manner, to wit : At the expiration of three 
months from and after the pafling of this act, a fubfcriptlon book 
Ihall be opened at the treafury office of this flate, and be kept 
open for the term of four months thereafter, for the purpofe of 
receiving fubfcriptions of the citizens for the faid referved lands : 



[ 8o ] 

Provide Jy That no perfon who (hall otherwifc become a mem. 
ber or intereftcd in cither of the companies herein contemplated, 
Ihall be allowed to fubfcribe for any part of faid referved land, 
no perfon flull be permlttal to fubfcribe for more than five 
thoufand acres In his own name or in the name of any other ci- 
tfzcn» unlcfs duly authorifed and appointedby him for that pur- 
pofe under a warrant of attorney, executed in the prefence of two 
or more witnefTes, one of whom at leaft fhall be a jufticc appoin- 
ted for holding the Inferior Court of the county where the fub* 
Icnbcr rcfides, which faid power of attorney fliall be lodged 
with the treafurcr, as his voucher for entering fuch fubfcrlption j 
and Provided alfo. That the citizens of the refpedlive counties 
ihall not, at any time within three months from and after the 
opening of the books of fubfcrlption as aforefaid, be allovved to 
fubfcribe for more or greater quantity of the faid referved lands, 
than the proportion hcreiuafter particularly defcribed and limit- 
ed, to wit: Chatham, one hundred and feventy thoufand acres \ 
Effingham, fixty-two thoufand acres ; Burke, one hundred and 
fifty- five thoufand acres, Richmond, one hundred and fifty-five 
thoufand acres-, Columbia, one hundred and fifty-five thoufand 
acres -, Wilkes, two hundred and feVenty-two thoufand acres •, 
Wafhington, one hundred and thirty-one thoufand acres j El- 
bert, one hundred and thirty-one thoufand acres ; Greene, one 
hundred and twenty- five thoufand acres •, Franklin, feventy- 
eight thoufand acres *, Liberty, fixty-nlne thoufand acres*, Glynn, 
thirty-two thoufand acres •, Camden, thirty-two thoufand acres J 
M'Intofh, thirty-five thoufand acres j Bryant, thirty-two thoufi- 
and acres i Warren, ninety-three thoufand acres •, Oglethorp, 
one hundred and fixteen tlioufand acres -, Montgomery, twenty- 
three thoufand acres •, Scriven, thirty-eight thoufand acres , and 
Hancock, ninety-fix thoufand acres. And it (hall be the duty 



[ 8> ] 

of the treafarer, in all cafes of application to fubfcribc, to re- 
quire an affiJavit, in writing, in the following \\?ords : * I do fo- 
lemnly fvvear, or affirm, that I am in no way intercftcd diredl- 
ly or indire(5lly cither as a member, or otherwifc, in any com- 
pany's pure hafe of lands in the weftern part of this ftate, and 
that the fubfcription which I propofe to enter, is irt my own pro- 
per right, and to my ufeand benefit only.* And it (hall be the 
duty ofthejuftices of the Inferior Courts before whom war- 
rants of attorney authorifing fubfcriptions Hiall be executed, to 
require a like affidavit on the back of fuch warrant of attorney, 
before attefling the fame; and the land fo fubfcribed and paid 
for (hall be held by fuch fubfcribers, in fce-fimple, as tenants in- 
common, and not as joint tenants on the fame terms, and upon 
the fame principles, with original purchafers of the company in 
which they fhall fubfcribc, and /hall be entitled to fair and equal 
rcprefentations in fuch company, in proportion to the quantity 
of land fo by them fubfcribed and paid for. 

yfnJ be it further cnaffcJ, That upon entering any fuB-* 
(cription as aforcfaid, it (hall be the duty of the trcafurer, and he 
is hereby required to receive of the fubfcribers the purchafe mo- 
ney, being the proportion of one fifth part of fuch fubfcription 
in terms of this acft, the remaining four fiftlis or balance of the 
purchafe money /hall, within four months from and after the 
opening the faid book of fubfcriptions, be paid unto the treafur- 
er in Uke manner as aforeiaid, and in cafe fuch balance /hall net 
be paid on or before the expiration of the faid fevcn months from 
the pafTing of this atfl, that then and in that cafe, the fubfcribcr 
Or fubfcribers fo failing, /hall be at liberty to withdraw their faid 
fubfcription, together with the money fo paid by them, and the 
l^ids fo fubfcribed for by them /hall revert to and be veft- 

B 



[ 82 ] 

ed in the company in which fuch fubfcription (hall have been 
made or entered. 

And be ii further ena^ed. That all that trad of country in- 
cluding iilands, fituate, lying and being, within the following 
boundaries, that is to fay : Beginning on the river MiiTiflippi, 
at the place where the latitude of thirty-one degrees and eigh- 
teen minutes north of the equator interfeds the fame \ thence 
a due caft courfe to the middle of Don or Tombigby river; 
thence up the middle of the faid river, to where it interfeds the 
latitude, of thirty- two degrees and forty minutes north of the 
equator thence a due weft courfe along the Georgia Company 
line, to the river MilfifTippi, therxe down the middle of the 
fame to the place of beginning, fliall be fold to Nicholas Long, 
Thomas Glafcock, Ambrofc Gordon, and Thomas Cumming, 
and their a/lbciatcs, called the GEORGIA MISSISSIPPI 
COMPANY, to them and their heirs and aligns forever in 
fec-fimple, as tenants in common, and not as joint tenants for 
the fum of one hundred and fifty-five thoufand dollars, to be 
paid in gold or filvcr coin, bank bills of the United States, and 
fuch warrants as are made payable in the Georgia Company's 
purchafc, in the manner following, that is to fay : Thirty-one 
thoufand dollars to be depofitcd previous to the parting of this 
ad, and the remaining one hundred and twenty- four thoufand 
dollars to be paid on or before the firft day of November next. 

jind be it further ena^ed^ Thit whenever the faid Nicholas 
Long, Thomas Glafcock, A mbrofe Gordon, and Thomas Cum- 
ming, and their aflociatc or their agent or agents, fliall produce 
to his Excellency the Governor, a receipt fignedby thetreafurer, 
that they have depofited the aforefaid fum of thirty-one thouf- 
and dollars according to the tenor and t^^^ of this ad, it fhall 



[ 8-1 1 

then he the duty of his Excellency the Governor, and he is 
hereby required to iflue and fign to the faid Nicholas Long, 
Thomas Glafcocic, \mbrofe Gordon, and Thomas Cumming, 
and their afTociates, their heirs and afllgns, in fce-fimple, as te- 
nants in common, and not as joint tenants, a grant for the afore- 
faid trad of country they fccuring the laft payment of one hun- 
dred and twenty-four thoufand dollars to the ftate by a mort- 
gage to his Excellency the Governor and his fuccefibr iu ofike 
on the whole of the land fo granted, which mortgage fhall bo 
immediately forcclofed in cafe default fhall be made in the pay- 
ment of the faid fum of one hundred and twenty-four thoufand 
dollars, on or before the firft day of November next, as afore- 
faid, in the Superior Court of any county within the State of 
Georgia, at the difcretion of his Excellency the Governor, any 
law or ufuage, regulating the mode of foreclofing mortgages, 
to the contrary notwithllanding, and the whole fum of thirty-one 
thoufand dollars depofited, will become forfeited to and for the 
life of the ftate •, and the grant to be given to the fild Nicholas 
Long, I'homas Glafcock, Ambrofe Gordon, and Thomas 
Cumming, and their aflbciates, as aforefaid, to be and the fame 
is hereby declared to be null and void. 

ylfid be it further enailedy That the faid Georgia Miflif- 
fippi Company, (hall referve for the ufe of the citizens of Geor- 
gia exclufive, the quantity of fix hundred and twenty thoufand 
acres of their purchafe, to be fubfcribed, or held and appropri- 
ated on the fame terms, and to be reprefented in like manner, as 
the land referved by the Georgia Company as aforefaid. 

And be it further ena^ed^ That all that tracfl of country 
including iflands, fituate, lying and being within the following 
boundaries, that is to fay : Beginning at the Mifliflippi river, 



X 84 J 

^liere the northern boundary line of this ftatc ftrlk.es the fame ; 
thence along the faid northern boundary line, due eaft to the 
Te.'incflee river; thence along the faid Tenncflce river, to the 
mouth of Bear Creek, thence up Bear Creek to where the pa- 
rallel-of latitude twenty -five Britifli ftatute miles, fouth of the 
northern boundary line of this ftate interfedls the Cime j thence 
along the faid lift mentioned parallel of latitude, acrofs Tom- 
^ -bighy or Twenty Miles creek, due weft to the Mifliflippi ri- 
ver i thence up the middle of the faid river to the beginning • 
jihall be lold to John B. Scott, John C. Nightingale and Wade 
Hampton, called the UPPER MISSISSIPPI COMPANY, 
and to their heirs and aftigns forever, in fee-fimple, as tenants in 
common, and not as joint tenants, for the fum of thirty-five 
thoufand dollars, to be paid in fpecie, bank bills of the United 
States, and fucb warrants as are made payable in the Georgia 
Company's purchafe in manner following, that is to fay : Five 
thoufand dollars, part thereof to be depofited previous to the 
pafling of this ad, and the remaining fum of thirty thoufand dol- 
lars, to be paiil on or before the 6rft day of November next. 

Jmi he it further ena^td^ That whenever the faid Joha 
B. Scott, John C. Nightingale, and Wade Hampton, or their 
agent or agents, fhall produce to his Excellency the Governor, 
a receipt fignedby the treafurcr, that they have depofited the 
aforcfaid fum of five thoufand dollars according to the tenor and 
cfFcft of thisavft, it fhall then be the duty of his Excellency 
the Governor, and he is hereby required -to iiVuc and fign to the 
faid John B. Scott, John C. Nightingale, and Wade Hampton, 
their heirs and afllgns in fee-fimple, as tenants in common, and 
not as joint tenants a grant for the aforefaid land, they fccuring 
the laft payment of thirty thoufand dollars to the ftate, by a 
^mortgage to his Excellency the governor and his fucceflbrs in 



r 85 ] 

office, on the whole of the land fo granted, which mortgage (hall 
be immediately foreclofed, in cafe default (hall be made in the 
payment of the faid fum of thirty thoufand dollars, on or before 
the firft day of November next, as aforefaid, in the Superior 
court of any county within the ftatc of Georgia, at the difcre- 
tlon of his Excellency the Governor, any law or ufage, regulat- 
ing the mode of foreclofing n^ortgages, to the contrary notwith- 
ftanding, and the whole fum of five thoufand dollars, dcpofited, 
ihall become forfeited to and for the ufe of the (late •, and the 
grant to be given to the (aid John B. Scott, John C. Nightin- 
gale, and Wade Hampton, as aforefaid, to be and the fame in 
that cafe is hereby declared to be null and void. 

Jnd be it further ena^edy That the faid Upper MifTiiTipj-u 
Company (hall referve to and for the ufe of the citizens of Geor- 
gia exclufively, the quantity of one hundred and thirty-eight 
thoufand acres of their purchafe, to be fubfcribed for, held ap- 
propriated, on the fame terms, and to be reprefcnted in like 
manner, as herein before pointed out in refpecJl to the lands re- 
fer ved for the citizens in the Georgia company. 

y/«i be it further enaSled^ That all that tracft of landinclud- 
ing iflands, fituate, lying and being within the following boun- 
dary lines : Beginning at the mouth of Bear Creek, on the fouth 
fide of the Tenneflee river j thence up the faid Creek to the 
moft fouthern fource thereof i tJience due fouth to the latitude 
of thirty- four degrees ten minutes north of the equator \ thence 
a due eart: courfe one hundred and twenty miles j thence a due 
north courfe tp the Great Tenneflee river •, thence up the middle 
of the faid river to the northern boundary line of this (late j 
thence a due weft courfe along the faid line to where it interfe(5ts 
the Great Tennc(ree river, below the Mu(rei Shoals i thence up 



[ 86 ] 

the faid river to the place of beginning, (hall he fold unto Zach- 
ariah Cox, Matthias Mahcr, and their aflbciatc?, called the 
TENNESSEE COMPAN Y,and to their lieirs and afllons for- 
ever in feci-fimple, as tenants in common, and i^ot as joint ten- 
ants, for the fum of fixty thoufmd dollars, to be paid in fpecic, 
bank bills of tlic United States, and fuch warrants as are made 
payable in Georgia Company's ptirchafe, that is to fay : twelve 
thoufand dollars to be dcpofited as part thereof, previous to the 
pading of this a6l, and the remaining forty-eight tlioufand 
dollars to be paid on or before the firft day of November next. 

And b: l: further cnailcd^ That whenever the fald Zacha- 
riah Cox, and Miittliias Maher, and their afTociates, or their 
agent or agents flnll produce to his Excellency the Governor, 
a receipt (Igned by the treafurer, that they have dcpofited the 
iiid fum of twelve thoufind dollars, according to the tenor and 
efFee'l of this ae^, it fliall then be the duty of his Excellency the 
Governor, and he is hereby required to fign and illue to the 
iiiid Zachariah Cox, and Matthias Maher, and their aflbciates 
their heirs and afiigns in fec-fimple, as tenants in common, and 
not as joint tenants, a grant for th.c aforcfild traift of country, 
they fecuring the lad: payment of the forty eight thoufand dol- 
lars to the ftate, by a mortgage to his Excellency the Governor, 
and bis fucceiTors in office on the whole of the land fo granted 
which mortgage fliall be immediately forcclofed in cafe default 
fhall be made in the payment of the faid fum of forty-eight 
thoufand dollars, on or before the firfl day of November next, 
as aforefaid, in the Superior Court of any county within the 
ftate of Georgia, at the difcretion of his Excellency the Gover- 
nor, any law or ufage, regulating the mode of forcclonng mort- 
gages to the contrary notwithftanding, and the whole fum of 



[ "-7 ] 

Iwtlvc thoufand dollars dcpofited, fliall become forfeited (o and 
for tlie iifeof the ftatc ; niui the graiit to bo given to the faid 
ZachariahCox, and Matthias Mahcr, and their anbciatcs nforc- 
faid, toi)e, and the fame in that cafe is hereby declared to be 
null and void. 

Andhcit further ctu^hd, That the fiid Tcnn;: iTee Company fi.all 
rtfcrvc for and to the life of the citizens of Georgia, cxclufively, 
theijuantity of two hmulrcd x.\\ forty- two lliouratul acrcs» to 
bo fubfi^ribcd for, Iicld anJ apj^ropiiated on tlic fame tcun.^ and 
to be rcprcfcnted in lik: matiner as the lands rcfervcd l-y the 
Georgia Company as aforcfaid. 

And he !t further en.iUcd^ That the fiid TenneH'.'e Com- 
pany fliall referve a further quantity of fifty thoufand ceres, to 
begratuioufly divided Hiare and fiiarealikc,betwccn theCommif- 
fioners appointed by this ftate for the purpofc of examining the 
quantity, qtiallty andcircumftanccs of the Grctit Bend of Ten- 
neflee river which (hall be held by them as tenants in common, 
and not as joint tenants and be reprefented in like manner as the 
lands referred by the other companies, for the ufc ot the citi- 
zens, as a compenfation to tlic faid Commifiioners for their (cr- 
viees rendered the ftate in that capacity. 

And he it further enaHed^ That all fums (o paid by the citi- 
zens for lands fubfcribed for by them, agreeably to the terms 
of the a*.^, llvdl be received in payment and as part of the pur- 
chafe money of the faid companies refpedively. 

And he it further enabled. That the grants to be iffued to 
the refpe(5live Companies in virtue of this a(5l, (hall be. free 
from all further or other cxpence whatfoever, the fees of office 
accruing iipo.M one grant to each company excepted, which (hall 



t 88 ] 

bctothe Surveyor- General three dollars, to the Governor of the 
ftate, three dollars, and to the Secretary of the ftatc, three dol- 
lars i and that the lands to be granted in purfuancc of this adl, 
fliall be free frohi taxation until the inhabitant's tliercof are re- 
prefented in the Legiflature. 

And h it further enaSled^ That the faid grantees and pur- 
chafers of the land aforefaid, fhall forbear all hoftilfe and wan- 
ton attacks on any of the Indian tribes which may be found 
within the limits of this ftate, and keep this ftatc free from all 
charges and expences which may attend theprefcrving of peace 
between the faid Indians and the grantees, and extinguifliing 
the Indian claims to the territory included within their refpec- 
tive purchafesi ylnd provided further, thzt t\\\s ^zt^ 3iVid the 
government thereof fhall at no time hereafter be fubjedl to any 
fuit at law ox in equity, or claim or pretention whatever, for 
or on account of any dcdudion in the quantity of the faid ter- 
ritory, or on account of the amount of the purchafe money to 
be paid as aforefaid, by any recovery which may or fhall be had 
on any former or other claim or claims whatever. 

And be it further enacted. That the money arlfing from the 
fale of the faid territory, except what fhall be appropriated to 
the extinguifhment of Indians claims as hereinafter cxprefTcd, 
fhall be vefted in fix per cents, or fuch other ftock in the fund* 
of the United States as may be dircaed by this or a future Le- 
giflature, and the intereft arifing thereon, or fo much thereof as 
may be neceflkry, fhall be appliedto the payment of the civil 
cftablifKment and contingent expences of the government of this 
^te. 



[■ 89 ] 

And k it furlhn- enafied^ That immediately after tlie Indian 
claims to the land lying btrtwccn tljc Ocor.ee and Oakmulgec ri« 
vers, including that tra(5l of country lying cail of a line to be 
drawn from the place called Fort Romulus, on the 0;«knujIgcc 
river to the head of the St. Mary's river, or the northern ex- 
tremity of the Akinfonoka fwanip maybe cxtinguiflictl, the 
gratitees of the fevernl companies and their aflbciates are hereby 
authorifcd to apply to (he government of the United States for 
tJieif concurrence in cnringuilhing the Indian claims to the dif- 
ferent traif^s of country by ihcm (everally hereby purchafed, 
or as mucli thereof as Xo rhem may fcem prat^iciblc, which ex- 
tinguiflimcnt of claims to the lands {o purchafed, rtiali be at the 
proper expence of the refpcdive companies, and within five 
years thereafter, the faid companies fhall feverally form fcttle- 
mcnts on the lands where tiie claims may be fo extinguiihcd, or 
forfeit the further Turn of five thoufand dollars for each company 
fo failing. 

And be it furilcr ota^cd,, That the fum often thoufand 
dollars, part of tiic f.rfl payn'.ent to be made by the companies 
aforefuid, (hall be, and the fame is hereby declared to be ap- 
propriated and fct apart for the purpofe of extinguifliing the 
Indian claim in addition to the twenty thoufmd dollars appro- 
priated by the a(5l entitled, an aifl appropriating a part of the 
unlocated territory of this ftate, for the payment of the late 
ftatc troops and for other purpofcs therein mentioned. 

And be it further cnaSicd^ That the feveral grantees and 
their aflbciates, fliall not be entitled to difpofe of the faid terri- 
tory in part or in whole, in any way or manner to any foreign 
king, prince, potefttate or power whatever, which condition 

/hall bcfpeciallv exprefled In the face of the graqt. 

C 



t 9C5 ] 

Andht it further enaatd. That ail the lands lying weft- 
ward and fouthward of the caftern boundary of the feveral com- 
pany purchafers and not included therein, cftimatcd at one fourth 
of the whole lands lying wcftward and fouthward of the eaftern 
boundary of the faid purchafefs, and fuppofcd to contain feven 
millions two hundred and fifty thoufand acres, fliall be and the 
fame is hereby declared to be refcrved and fet apart to, and for 
the ufe and benefit of this ftate, to be granted out or otherwife 
difpofcd of as a future Legiflature may dired. 

THOMAS NAPIER, Speaker of the Houfe 

of Reprefentatives. 
BENJAMIN TALIAFERRO, Pre/tdent of 

the Senate. 
GEORGE MATHEWS, Governor, 
Concurred January 7, 1 795. 

Number 5. 

STATE OF GEORGIA. 

By His Excellency George Mathews, Captain- Gene- 
ral, Governor and Commander in Chief in and over 
the faid State, and of the Militia thereof. 
To all whom thefe Prefents fhall come, GREETING : 
KNOW YE, That in purfuance of the A<51 of the 
GenertI Afl*embly entitled, ** An Ad fupplcmentary to an Adfc 
** entitled, * An A<ft for appropriating a part of the unlocated 
** territory of this ftate, for the payment of the late ftate troops, 
** and for other purpofes therein mentioned,* declaring the right 
** of this ftate to the unappropriated territory thereof, for the 
" protection and fupport of the frontiers of this ftate and for 
other purpofes," palTcd at Augufta on the feventh day of Ja- 
nuary, in the year of our Lord one thoufand (zstn hundred 



[ 91 3 

and ninety- five, and, of the fovcrcignty and independence of 
the United States of America, the Nineteenth, and by vir- 
tue of the powers in me vefted, I HAVE given and granted, 
and by thefc prcfcnts, in the name and behalf of tlic faid ftate, 
no give and grant, under and by virtue of the before-men- 
tioned fupplemcntary Aa, and fecuring to the ftate, according 
to the diredions, refcrvations and ftipulations therein contain- 
ed and ex pre ffcd, unto Nicholas Long, Thomas Glascock, 
Ambrose GonDOf* and Thomas Gumming and their aflbct- 
ates, their heirs and afligns forever, in fee fimple, as tenants in 
common, and not as joint tenants, ALL THAT traft or par- 
cel of land, inchiding iflands, fituatc, lying and being within the 
following boundaries that is to fay, BEGINNING on the rhtr 
^1i£iJJippi-> ai the place whtre the latitude of their ty -one degrees 
and eighteen minutes north of the equator interfcDs the fame ; thence 
a due eafi courfe to the midlife of Don or Tom Bigly river j thence 
up the middle of the faid river ^ to where it interfe£is the latitude of 
thirty- tivo degrees and forty minutes north of the equator \ thence a 
due -vefl courje along the Georgia Company s line, to the riv^r AHf- 
fiffippi \ thence down the middle of the fame to the place of BE- 
GINNINGy together with all and fingular the rights, mem- 
bers and appurtenances whatfocver, to the faid tra(5l or parcel of 
land, including iflands, belonging, or in any wife appertaining; 
and alfo all the eftate, right, title, intreft, claim and demand of 
the ftate aforefaid, of, in, to, or out of the fame ; referving, 
neverthelefs out of the faid tradl of land, fix hundred and twenty 
thoufand acres, to be fubfcribed by, and for the ufe and behoof 
of other citizens of the faid ftate, who fliall choofe to do the 
fame, at fuch time, at fuch rates, and to fuch effed, and in fuch 
form and manner as are pointed out and exprefled in the before 
mentioned fupplcmentary A^ -, provided alfo, that the faid Ni- 



I 92 1 

CHOLAS Long, 'i n iMAs ulascock, Ambrose Gordon an<J 
1 HOMAS CuMMiNo ood their afTociates, (hall not be entitled to 
iifpofc of faid territory, in part or in whole, in any way or man- 
ner to any foreign Icing, prince, potentate or power whatever; 
TO HAVE AND TO MOLD the dud tra<5l or parco< of 
land, and all and fingular the prcmifcs aforcfaid, with their and 
every of their rights, nv.*mbcrs and appurtenances, unto the 
faid Nicholas Lono, Thomas Glascock, Ambrose Gordon 
and Thomas CvMMiNo and their aflbcittes, called the GEOR^ 
CL4 MISSISSIPPI COMPANT, their heirs and afligns for- 
ever, in fce-fimple, as tenants in common, anil not as joijit ten- 
ants. 

GIVEN under my hand and tlie great fea! of the faid (late, 
this twenty-fixth day of T^iuary, in the year of our Lord 
one thoufand feven huncfred and ninety-five, and in the 
nineteenth year of American Independence, 

GEO. MATHEWS. 
SIGNED hy his Excellency ibe 
GOVERNOR, the twenty- 
Jixth day of January y 1795. 

Edward Watts, S. E. D. 

Number 6. 
Seb Appendix No. 4. 

Number 7. 
See Receipt on the Uck of the original Mortgage, in 
the hands of the Grantees. f 

Number S. 
See aa of the Georgia Legiflature, of 1788. 



r 93' } 

NUMBKR 9. 

See Appendix ante No. 4. 

Number 10. 

See Appropriations made by Congrcfs ofunlocated terri- 
tory belonging to the United States. 

NUMUER II. 

Acts of North-Carolina, and other State§» difpoHng of 
vacant lands. 

Number 12. 

Act of Georgia Legiflature, laying out a county called 
Bourbon, and felling the fame, in the year 1789. 

Number 13. 

See the Georgia A6t for ceding territory to Congrefs, and 
their Journals on that fubjc(5t. 

Number 14. 

See Journals of the Georgia Legiflature ia 1796, and the 
bill, commonly called the Refcinding Adl, 

Number 15. 

See the affidavit? at large in Harper's cafe of the Georgia 
faUI. 

Number 16. 
Sbe Conftitution of Georgia as rcvifcd in 1798. 

f H E END. 



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